Opinion
# 2014-049-043 Claim No. 120923 Motion No. M-85248 Cross-Motion No. CM-85309
07-25-2014
ALEXANDER BAKALIS v. THE CITY UNIVERSITY OF NEW YORK
Decolator, Cohen & DiPrisco, LLP By: Joseph L. Decolator, Esq. Eric T. Schneiderman, New York State Attorney General By: Janet L. Polstein, Assistant Attorney General
Synopsis
Defendant's motion to dismiss the claim for failure to comply with the pleading requirements of Court of Claims Act § 11(b) is denied. Claimant's cross motion to amend a typographical error is granted.
Case information
| UID: | 2014-049-043 |
| Claimant(s): | ALEXANDER BAKALIS |
| Claimant short name: | BAKALIS |
| Footnote (claimant name) : | |
| Defendant(s): | THE CITY UNIVERSITY OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 120923 |
| Motion number(s): | M-85248 |
| Cross-motion number(s): | CM-85309 |
| Judge: | DAVID A. WEINSTEIN |
| Claimant's attorney: | Decolator, Cohen & DiPrisco, LLP By: Joseph L. Decolator, Esq. |
| Defendant's attorney: | Eric T. Schneiderman, New York State Attorney General By: Janet L. Polstein, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 25, 2014 |
| City: | New York |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
In a claim filed February 14, 2012, claimant Alexander Bakalis alleges that on December 29, 2009 he sustained injuries when he slipped and fell on cardboard, cardboard boxes, garbage, or other debris that covered ice near a dumpster on "the premises known as The New York City College of Technology and located at 256 Jay Street" (the "College"), in Brooklyn (Claim ¶ 8). At the time, Bakalis was an on-duty New York City Police Department ("NYPD") officer in pursuit of a fleeing suspect. The claim asserts that defendant City University of New York ("CUNY") had notice of the dangerous condition and was in violation of a number of codes and ordinances.
Defendant now moves to dismiss the claim for failure to comply with the particularization requirements of Court of Claims Act § 11(b), and for failure to state a claim pursuant to CPLR 3211(a)(7). Claimant opposes the motion, and cross-moves to amend his claim.
By way of background, a preliminary conference order in this matter directed that motions for summary judgment be filed and served within sixty days of the filing of the note of issue. On January 21, 2014, claimant filed his note of issue. A telephone conference was held on April 29, 2014, at which CUNY informed the Court that while it did not make a timely summary judgment motion, it nevertheless intended to file a motion based on claimant's failure to comply with Court of Claims Act § 11(b). These motions ensued.
Defendant premises its motion on the fact that the narrative portion of the claim contains the incorrect address of the College, and that deposition testimony conducted during the course of discovery in this matter casts doubt on where claimant's accident actually occurred, or if it happened on College property at all. Because of these discrepancies, defendant asserts that "not only does the claim violate the strictures of Section 11, but claimant will not be able to sustain his burden of proof in this case" (Def. Aff. in Supp. ¶ 12).
Defendant also asserts that the claim fails to state a cause of action pursuant to CPLR 3211(a)(7), because there is no evidence that defendant had notice of "any hazard with respect to this dumpster" (id. ¶ 14).
Claimant opposes the motion and cross-moves to amend the claim to correct a typographical error changing the address number 256 Jay Street, stated in the narrative portion of claim, to the correct address of the premises - 285 Jay Street. He argues that defendant is inflating a mere typographical error into a jurisdictional defect, and in any case, much of defendant's application, in reality, is one for summary judgment made beyond the time permitted to make such a motion.
For reasons stated below, I find claimant's arguments persuasive, and deny the motion to dismiss. To understand the basis for this ruling, a brief summary of the procedural history of this matter is in order.
On March 19, 2010, claimant served a notice of intention to file a claim on the Attorney General's Office (see Cl. Aff. in Supp. Ex. C). Claimant also served a notice of intention on the Dormitory Authority of the State of New York ("DASNY"), apparently believing that DASNY was responsible for the premises at issue. Claimant later served a notice of intention to file a claim against CUNY on November 11, 2010, upon learning (according to claimant) that DASNY was an out-of-possession owner (see Cl. Aff. in Supp. ¶ 7). This notice of intention was served beyond the 90-day period permitted by statute, and therefore claimant brought a motion for permission to serve and file a late claim pursuant to Court of Claims Act § 10(6).
According to defendant's submission, claimant initially filed a claim on August 25, 2010, which it served on October 5 (Def. Aff. in Supp. ¶ 3). In its answer to that claim, defendant asserted as affirmative defenses that claimant had failed to properly serve CUNY or to particularize its allegations in accordance with section 11(b) (id.). In response, claimant brought a late claim motion, as discussed above (id.). Neither party appends a copy of such pleadings to its present filings.
By decision and order filed February 8, 2012, the Court granted claimant's application. In that decision and order, Judge Schweitzer stated:
"CUNY had timely notice of the facts of this claim, had an opportunity to investigate the circumstances of the claim, and has not shown that it has been substantially prejudiced by the claimant's failure to serve a timely claim. Most importantly, claimant may have a meritorious claim against CUNY" (Bakalis v State of New York, Ct Cl, Feb. 8, 2012, Schweitzer, J., Motion No. M-79208 [emphasis added]).
Court of Claims Act § 10(6) requires that "[t]he claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application." Therefore, by granting claimant's section 10(6) motion, the Court implicitly found that the proposed claim had satisfied the pleading requirements of section 11(b). That would be the end of the inquiry, save for one complication.
A review of the proposed claim submitted on the late claim motion before Judge Schweitzer reveals that the address of the premises where the accident occurred was given in the narrative as "The New York City College of Technology and located at 285 Jay Street, Brooklyn." That same address was given in the two Notices of Intention served by claimant. But the claim ultimately filed in this action contained a different address - "256 Jay Street" - as described above. In addition, there are a number of other minor alterations evident when comparing the proposed claim with the filed claim. For example, the amount of damages requested was increased from $1,000,000 in the proposed claim to $6,000,000 in the filed claim. None of these changes (except as to the address, which is discussed below), are material. Indeed, with respect to the amount of damages, section 11(b) no longer requires that a claim for personal injury set forth a total sum claimed at all (see L 2007, ch 606, § 1). In any event, defendant does not raise the issue, much less claim it was prejudiced by these other changes. I find that such non-material changes between the claim proposed on the motion to file a late claim and the claim ultimately filed do not deprive this Court of jurisdiction over the matter (see Lavoie v State of New York, UID No. 2000-019-536 [Ct Cl, Lebous, J., Oct. 20, 2000] [denying motion to dismiss claim because of differences between filed claim and that submitted on late claim motion; "the State has not indicated how it is prejudiced" in allowing claimant to increase his ad damnum clause in the filed claim]; but cf. Matter of Iazzetta v State of New York, 105 Misc 2d 567, 570 [Ct Cl 1980] ["the proposed claim which was tendered upon the motion which must be filed in haec verba or with such alterations as the court may have directed"; Court, however, denies motion to dismiss, and grant's claimant's motion to amend claim]).
This leaves the issue of the address number, and whether the inclusion of "256 Jay Street" in paragraph eight of the narrative portion of the claim constitutes a violation of section 11(b). In answering this question, I note that the lone reference to this address in the pleadings is at odds with every other statement made in the claim regarding the address, and is manifestly a typographical error. Each of the 13 photographs that are attached as exhibits to the claim contain a description of the image with the address number, the vantage point of the camera, and a comments section. The first three photographs depict the front of building described as "New York City College of Technology at 285 Jay Street, Brooklyn," with that address number clearly visible above the entrance of the building. The next three photographs depict a dumpster located in an alleyway behind a metal gate. Photograph number 6 shows the dumpster in relationship to an adjacent building entrance with signage that reads "Polytechnic University." The remainder of the photographs are closeups of the gate to the alleyway, the dumpster itself, and one of an outside doorway with debris near it. All of the photographs give the address in the description as the "New York City College of Technology at 285 Jay Street, Brooklyn, NY." In other words, claimant's pleading had it right 13 of the 14 times the address is mentioned, as did the proposed claim in the late claim motion itself.
Therefore, the question before me is whether the sole erroneous reference to "256 Jay Street" constitutes a jurisdictional defect for purposes of section 11(b).
Court of Claims Act § 11(b) requires that a claim state, inter alia, the "place where such claim arose." The "guiding principle" underlying this provision is that the pleadings must be sufficiently definite "'to enable the State . . . to investigate the claim[s] promptly, and to ascertain its liability under the circumstances'" (Lepkowski v State of New York, 1 NY 3d 201, 209, quoting Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]). In Kolnacki v State of New York (8 NY3d 277 [2007]), the Court of Appeals made clear that "[t]he failure to satisfy any of the conditions [in section 11(b)] is a jurisdictional defect," but the Court added that "[a] claim may always be amended at a later time, if necessary" (id. at 281; see also Lockley v State of New York, 41 AD3d 439 [2d Dept 2007] [pursuant to Court of Claims Act § 9(8), "leave to amend a claim may be granted 'in furtherance of justice for any error in form or substance'"]).
While a pleading that contains the incorrect place where the claim arose in a premises liability case, standing alone, may not give defendant adequate notice under section 11(b), such is not the situation here. As noted, the claim repeatedly states the address correctly in the appended photographs, and those photographs show the building where the accident occurred and the location of the fall. From the claim itself, it is clear where Bakalis alleges the incident occurred, and it is equally obvious that the one aberrational mention of "256 Jay Street" is a typographical error. While defendant states that because of the error, it was "thwarted from collecting" information, "due to the transitory nature" of the condition that led to the accident (Def. Reply Aff. ¶ 9), defendant already had such notice from the late claim motion (see Matter of O'Shea v State of New York, 36 AD3d 706, 707 [2d Dept 2007] [motion to dismiss under section 11(b) denied when "[t]he proposed claim in the [late claim] motion provided the defendant with timely notice of all of the relevant facts and allegations giving rise to the claim," and thus "the purpose underlying Court of Claims Act § 11(b) was clearly served").
Moreover, as Judge Schweitzer noted in his Decision and Order, the Attorney General had "received a timely notice of intention to file a claim against the Dormitory Authority" on March 19, 2010, which notice alleged the identical facts as those ultimately asserted against CUNY - including the address of the accident (see Def. Aff. in Supp. Ex. A at 4). Indeed, such a notice of intention was served on CUNY directly, on November 11, 2010, also referencing the 285 Jay Street address.
In light of the foregoing, claimant's motion to dismiss under section 11(b) is denied. Further, in view of the legal principle that "[l]eave to amend the pleadings 'shall be freely given' absent prejudice or surprise resulting directly from the delay" (Fahey v County of Ontario, 44 NY2d 934, 935 [1978], quoting CPLR 3025 [b]), claimant's cross motion is granted as set forth infra.
Finally, defendant's arguments based on deposition testimony concerning CUNY's notice of the defect, whether claimant's accident occurred on CUNY property, and other such topics, are not properly raised in a CPLR 3211(a)(7) motion, which must be decided solely on the sufficiency of the allegations made in the pleadings (see Leon v Martinez, 84 NY2d 83, 87-88 [1994] [on motion to dismiss under CPLR 3211[a][7], court must "accept the facts as alleged in the [claim] as true, accord [claimant] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory . . ."]).
Defendant's assertion that "there is no basis for liability against the State based on claimant's own testimony, nor is there any evidence that notice was ever provided to the State" (Def. Aff. in Supp. ¶ 17 [emphasis added]) is the stuff of a motion for summary judgment under CPLR 3212. As noted above, the deadline for making such a motion has passed, and defendant proffers no good cause for such deadline to be extended. As a result, I cannot grant such relief (Ford v City of New York, 54 AD3d 263 [1st Dept 2008] [summary judgment motion may not be made after deadline set by court order, absent good cause shown]).
In light of the foregoing, it is hereby
ORDERED that defendant's motion to dismiss the claim is denied; and it is further
ORDERED that claimant's cross motion to amend the claim is granted, and the claim is deemed amended to reflect that the reference to "256 Jay Street" in paragraph eight therein, be amended to read "285 Jay Street" (see Court of Claims Act § 9[8], CPLR 3026).
July 25, 2014
New York, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion, Affirmation in Support and annexed exhibits.
2. Claimant's Notice of Cross Motion, Affirmation in Opposition to Defendant's Motion and in Support of Cross Motion.
3. Defendant's Reply Affirmation.