Opinion
# 2018-040-071 Claim No. 131204 Motion No. M-92239
08-07-2018
A.M. v. THE STATE OF NEW YORK
CARLISLE LAW FIRM, P.C. By: Edward A. Betz, Esq. BARBARA D. UNDERWOOD Attorney General of the State of New York By: Sean B. Virkler, Esq., AAG
Synopsis
State's Pre-Answer Motion to Dismiss Claim on the basis that the Claim fails to meet the specificity requirements of CCA § 11(b) granted.
Case information
| UID: | 2018-040-071 |
| Claimant(s): | A.M. |
| Claimant short name: | A.M. |
| Footnote (claimant name) : | Because this Claim involves a victim of a sexual offense, the caption has been amended to give the Claimant a fictitious name in order to protect her identity. The Chief Clerk is directed to seal the file in Motion No. M-92239 pursuant to Civil Rights Law § 50-b (see Civil Rights Law §§ 50-b [1], 50-c [private right of action for wrongful disclosure of victim of sexual offense]). |
|---|---|
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | Caption amended to reflect the State of New York as the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 131204 |
| Motion number(s): | M-92239 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | CARLISLE LAW FIRM, P.C. By: Edward A. Betz, Esq. |
| Defendant's attorney: | BARBARA D. UNDERWOOD Attorney General of the State of New York By: Sean B. Virkler, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | August 7, 2018 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Defendant's Pre-Answer Motion to dismiss the Claim on the basis that it fails to meet the specificity requirements of Court of Claims Act § 11(b) is granted.
Claimant filed her Claim with the office of the Clerk of the Court on March 27, 2018 and served it upon Defendant on April 2, 2018 (Affirmation of Sean B. Virkler, Esq., Assistant Attorney General [hereinafter, "Virkler Affirmation"], ¶ 3 and Ex. A attached thereto) . The Claim states, in pertinent part:
2. Nature of Claim:
Claimant seeks money damages for personal injury, … sustained as a result of the negligence, carelessness and recklessness of the [S]tate of New York Office of Mental Health … to wit, premises liability for [Defendant's] negligence, failure to warn, failure to take reasonable precautions to inspect, investigate, remedy, [warn] and/or prevent an assault committed outside of the St. Lawrence Psychiatric Center against a medical office employee by a patient who has committed previous violent acts against medical care workers and whose violent propensities and previous attacks were known to the St. Lawrence Psychiatric Center.
3. The time when, the place where, and the manner in which the claim arose:
On or about January 24, 2018, at approximately 1:30 p.m., the [C]laimant was physically attacked and sexually assaulted by a patient who was being seen at her place of employment for an eye exam. The patient was dropped off by workers from the Saint Lawrence Psychiatric Hospital[,] who subsequently left[,] leaving no supervision for the patient. While [C]laimant was performing her job and asking her attacker questions regarding his medical history, he proceeded to behave in a violent and sexual manner, and[,] when [C]laimant attempted to leave the room, he physically and sexually assaulted her before she was able to get free from him and leave the room.
4. The items of damage or injuries claimed to have been sustained:
At present, the [C]laimant lacks sufficient information as to form a belief with respect to the totality of damages incurred as a result of the accident.
Pursuant to the Court of Claims Act provisions applicable to personal injury actions, Claimant was required to file and serve her Claim within 90 days from the date of accrual unless a written Notice of Intention to File a Claim was served upon the Attorney General within such time period. In that case, the Claim itself was required to be filed and served upon the Attorney General within two years after the accrual of the Claim (Court of Claims Act § 10[3]). In either case, Claimant was required to initiate action within 90 days of the Claim's accrual.
Court of Claims Act § 11(b) requires that, "[t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and … the total sum claimed" (see Demonstoy v State of New York, 130 AD3d 1337 [3d Dept 2015]).
Defendant asserts that the Claim fails to meet the specificity requirements of Court of Claims Act § 11(b) because it asserts only that the Claim arose at Claimant's "place of employment," fails to state the items of damages or injuries, and fails to provide the name of the alleged assailant and his relationship to the St. Lawrence Psychiatric Center (Virkler Affirmation, ¶ 9).
It is well established that the failure to satisfy the substantive pleading requirements of Court of Claims Act § 11(b) is a jurisdictional defect that requires dismissal of the Claim (Kolnacki v State of New York, 8 NY3d 277, 280-281 [2007]; Lepkowski v State of New York, 1 NY3d 201, 206-207 [2003]; Czynski v State of New York, 53 AD3d 881, 882-882 [3d Dept 2008], lv denied 11 NY3d 715 [2009]). As stated by the Appellate Division, Third Department in Morra v State of New York (107 AD3d 1115, 1115-1116 [3d Dept 2013]):
Although "absolute exactness" is not required (Heisler v State of New York, 78 AD2d 767, 767 [4th Dept] [1980]), the claim must " 'provide a sufficiently detailed description of the particulars of the claim to enable [defendant] to investigate and promptly ascertain the existence and extent of its liability' " (Robin BB. v State of New York, 56 AD3d 932, 932-933 [3d Dept] [2008], quoting Sinski v State of New York, 265 AD2d 319, 319, [2d Dept] [1999]). However, defendant is not required "to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski v State of New York [supra, at 208]). Failure to abide by these pleading requirements constitutes a jurisdictional defect mandating dismissal of the Claim, even though this may be a harsh result (see Kolnacki v State of New York, [supra] at 281; Dinerman v NYS Lottery, 69 AD3d 1145, 1146 [3d Dept] [2010], lv dismissed 15 NY3d 911 [2010]).
Here, the Court concludes that the place where the Claim accrued is not sufficiently detailed in the Claim. An allegation that the Claim accrued at Claimant's place of employment, without further specificity, is insufficient to meet the specificity requirements of Court of Claims Act § 11(b) (Sheils v State of New York, 249 AD2d 459, 460 [2d Dept 1988] [accident occurred along roadway somewhere on property with 1,000-foot frontage failed to provide sufficient description of the location of the accident]; see Morra v State of New York, supra at 1116).
If the information contained in the police report Claimant submitted as Exhibit B attached to the Betz Affirmation was contained in the Claim itself, i.e., Claimant's work address and the name of the alleged assailant, some of the specificity requirements of Court of Claims Act § 11(b) would have been met.
In addition to not properly specifying the location of Claimant's injury, the Claim makes only the conclusory allegation that the State was negligent without specifying any particular act of negligence. Further, there is no indication what injuries Claimant sustained.
As the Court finds that the Claim fails to satisfy the pleading requirements of Court of Claims Act § 11(b), Defendant's Motion is granted and the Claim is hereby dismissed.
August 7, 2018
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Defendant's Pre-Answer Motion to dismiss the Claim: Papers Numbered Notice of Motion, Affirmation in Support & Exhibits Attached 1 Affirmation in Opposition & Exhibits Attached 2 Reply Affirmation & Exhibits Attached 3 Papers Filed: Claim