Opinion
# 2019-040-046 Claim No. 131014 Motion No. M-93463
07-02-2019
TIMOTHY DODGE AND KAYCIE DODGE, as Parents and Natural Guardians of M.D., an infant v. THE STATE OF NEW YORK
KNYCH & WHRITENOUR, LLC By: Matthew E. Whritenour, Esq. LETITIA JAMES Attorney General of the State of New York By: William E. Arnold, IV, Esq., AAG
Synopsis
Defendant's Motion to Dismiss for failure to meet specificity requirements of Court of Claims Act § 11(b) granted.
Case information
| UID: | 2019-040-046 |
| Claimant(s): | TIMOTHY DODGE AND KAYCIE DODGE, as Parents and Natural Guardians of M.D., an infant |
| Claimant short name: | M.D. |
| Footnote (claimant name) : | The Court amends the caption of the Claim to include only the initials of the minor Claimant (see Uniform Rules for the Court of Claims § 206.5[e][i][iii]). |
|---|---|
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 131014 |
| Motion number(s): | M-93463 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | KNYCH & WHRITENOUR, LLC By: Matthew E. Whritenour, Esq. |
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: William E. Arnold, IV, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | July 2, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Defendant's 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.
Claimants filed their Claim in the office of the Clerk of the Court on February 20, 2018. Prior thereto, they served a Notice of Intention to File a Claim (hereinafter, "Notice of Intention") upon Defendant by personal service on October 24, 2017 (Affirmation of William E. Arnold, IV, Esq., Assistant Attorney General [hereinafter, "Arnold Affirmation"], ¶ 5, and Ex. A attached thereto). Subsequently, Claimants served the Claim upon Defendant by personal service on February 13, 2018 (Arnold Affirmation, ¶ 6 and Ex. B attached thereto). The Claim states, in pertinent part:
4. This claim arose on July 26, 2017, at approximately 4:00 p.m., at Moffitt Beach Campground, located at 205 Page Street, Speculator, New York 12108. The accident was reported to the campground staff.
5. Upon information and belief, the Moffitt Beach Campground, including its roadways, are owned, operated and maintained by the State of New York, through the New York State Department of Environmental Conservation.
6. The infant Claimant [M.D. (hereinafter, "M.D.")] was injured when she was caused to fall off her bicycle while lawfully and carefully riding her bicycle on a paved roadway in the Moffitt Beach Campground, at a location approximately adjacent to camp sites numbered 33 and 34.
7. The infant Claimant was caused to fall off her bicycle due to dangerous and unsafe potholes, cracks, fissures in the pavement, missing pavement and improperly maintained section of the roadway, patched with sand and other loose substances, which were not readily observable and constituted a hazard and a trap for bicyclists and pedestrians.
The Notice of Intention describes the location of the accident in the same words as the Claim (Ex. B attached to Arnold Affirmation).
Pursuant to the Court of Claims Act provisions applicable to personal injury actions, Claimants were required to file and serve their 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, Claimants were required to initiate action within 90 days of the Claim's accrual. Here, Claimants have met the above requirement. If the Notice of Intention is defective, however, it does not extend Claimants' time to serve and file the Claim and, thus, the Claim served upon Defendant on February 13, 2018 and filed in the office of the Clerk of the Court on February 20, 2018 would be untimely. At the same time, pursuant to Court of Claims Act § 11(c), any such defect is waived unless it is raised with particularity as an affirmative defense either by motion to dismiss prior to service of the responsive pleading, or in the responsive pleading itself (see Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).
In its Answer, filed in the office of the Clerk of the Court on March 20, 2018, Defendant asserted, among its affirmative defenses, as its First Affirmative Defense, that the Claim fails to include an adequate description of the location of the incident as required by Court of Claims Act § 11, and is thus insufficient to extend the time to serve and file a Claim. Defendant asserted, as its Fifth Affirmative Defense, that the Court lacks subject matter jurisdiction over the Claim and personal jurisdiction over the Defendant as the Claim fails to comply with Court of Claims Act § 11 by failing to include an adequate description of the location of the incident alleged in the Claim.
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]). The statute further states that a Notice of Intention to file a claim "shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated."
Defendant asserts that the Notice of Intention and Claim both fail to meet the specificity requirements of Court of Claims Act § 11(b). Defendant asserts that, less than a month after Claimants served their Notice of Intention, Defendant conducted an investigation to determine the circumstances of the alleged incident and to ascertain its potential liability (Arnold Affirmation, ¶ 11). As part of the investigation, the Office of the Attorney General (hereinafter, "OAG"), Investigator Alexandra Pratt visited the Moffitt Beach Campground on November 21, 2017 (the Affidavit of Ms. Pratt is attached to the Arnold Affirmation as Ex. F [hereinafter, "Pratt Affidavit"]).
During her visit, Ms. Pratt attempted to identify the location of the accident described in the Notice of Intention (Pratt Affidavit, ¶¶ 5-7). Ms. Pratt was accompanied by Max Rulison, who was employed as Conservation Operations Supervisor 2 at Moffitt Beach, Charles Anderson, who was employed as a Conservation Operations Supervisor 3, and Mike Buzzelli, who is employed in the position of Program Manager by the New York State Department of Environmental Conservation (hereinafter, "DEC") (id., ¶ 4). According to Ms. Pratt, neither Mr. Rulison nor other campground staff was aware of the exact location of M.D.'s accident (id., ¶ 8). Based upon the description of the accident location in the Notice of Intention, Ms. Pratt identified a roadway known as Raccoon Alley as the only roadway that runs adjacent to campsite numbers 33 and 34 (id., ¶ 6).
Defense counsel states in his affirmation that, based upon the photographs taken by Ms. Pratt, the relevant portion of Raccoon Alley is bordered by campsite numbers 33 and 34 on its right-hand (or more northerly) side and by a densely wooded area on its left-hand (or more southerly) side (Arnold Affirmation, ¶ 14). He further asserts that, based upon these photographs and the location described in both the Claim and the Notice of Intention, Defendant focused its investigation on the portions of Raccoon Alley depicted in Ms. Pratt's photographs that lead up to and pass next to campsite numbers 33 and 34 (id., ¶ 15).
Mr. Arnold further states that, on June 27, 2018, OAG Investigator Joseph T. Kelly, III, visited Moffitt Beach Campground (Attached as Exhibit G to the Arnold Affirmation is the Affidavit of Mr. Kelly [hereinafter, "Kelly Affidavit"], which describes his visit to Moffitt Beach Campground). During his visit, Mr. Kelly went to the area of Raccoon Alley adjacent to campsite numbers 33 and 34 based upon the description of the accident location provided by Claimants (Kelly Affidavit, ¶ 5). Mr. Kelly took several photographs of the sections of Raccoon Alley that are located next to campsites 33 and 34, as well as the roadway leading up to this area (id.). Mr. Kelly spoke with campground staff about M.D.'s accident (id., ¶ 7). According to Mr. Kelly, although the staff appeared to be aware that the accident had occurred the previous year, they could not offer any specific details about the location of the accident, or the circumstances surrounding it (id.).
In response to Claimants' discovery demand for copies of any incident reports prepared or obtained by Defendant regarding M.D.'s accident, Defendant provided a copy of an incident report prepared by Susan Dodge, who was employed as an assistant caretaker for Moffitt Beach Campground and responded to M.D.'s accident (Arnold Affirmation, ¶ 19).
Mr. Arnold asserts, upon information and belief, that Ms. Dodge is M.D.'s grandmother. Ms. Dodge confirms that she is M.D.'s grandmother (Affidavit of Susan Dodge, Ex. G, ¶ 11, attached to Whritenour Affidavit [see below]).
The Special Incident Report states that the "Exact Location of Incident" was "[o]n main road headed up to park entrance to pick up grandmother" (Ex. H, p. 1, attached to Arnold Affirmation). Defense counsel asserts that Main Campground Road/Moffitt Beach Road is approximately 1.40 miles long. The Incident Report does not provide any additional information regarding the specific location of the accident (Arnold Affirmation, ¶ 20).
Defendant further asserts that, on or about August 31, 2018, it received responses to its Combined Discovery Demands from Claimants. Among those responses were photographs depicting the roadway and alleged defects that allegedly caused M.D.'s accident (Arnold Affirmation, ¶ 21, and Ex. J attached thereto). Defendant states that, upon comparing these photographs with those taken by the OAG's investigators, it is apparent that the photographs in Exhibit J depict a completely different roadway than the one that is located adjacent to campsites numbered 33 and 34 (i.e., Raccoon Alley) (Arnold Affirmation, ¶ 22). Defendant's counsel further avers that, after receiving the photographs contained in Exhibit J, he sent them to Max Rulison at Moffitt Beach to see whether he could identify the roadway and/or location depicted in the photographs (id., ¶ 23). Mr. Rulison avers that he recognized the roadway in the photographs as the Main Campground Road/Moffitt Beach Road (id., ¶ 24, & Ex. K, ¶¶ 5, 7 [Affidavit of Max Rulison (hereinafter, "Rulison Affidavit")]). He identified a distinctive "V" shaped tree depicted in the photographs that sits alongside the Main Campground Road (Rulison Affidavit, ¶¶ 5-7). Mr. Rulison paced off 345 feet from this "V" shaped tree to Raccoon Alley, which splits and/or forks off to the right from Main Campground Road, and then along Raccoon Alley to a location alongside campsite number 32 (id., ¶ 6). According to Mr. Rulison, in September 2017 the section of Main Campground Road/Moffitt Beach Road depicted in the photographs provided by Claimants was ground and milled to prepare for repaving (id., ¶ 9). Defendant asserts that Claimant's failure to accurately describe the accident location deprived Defendant of the opportunity to investigate any alleged dangerous conditions that may have caused M.D.'s accident (Arnold Affirmation, ¶ 27).
In opposition to the Motion, Claimants assert:
17. The Notice of Intention not only limits the area [of the accident] as approximately adjacent to campsites 33 and 34, it goes further to state that the potholes or fissures in question had been filled with sand and other loose materials, work that the Claimant reasonably expected that the State would have record of. [In addition], the Claimants knew they had reported the accident to the State on the date of the accident, including taking Susan Dodge to the exact location.
(Affidavit of Matthew E. Whritenour, Esq. [hereinafter, "Whritenour Affidavit"], ¶ 17).
Claimants further assert that the same level of detail present in the Notice of Intention is also present in the Claim (Whritenour Affidavit, ¶ 18).
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]).
In Sheils v State of New York, (249 AD2d 459, 460 [2d Dept 1988]), the Appellate Division, Second Department found that an allegation that an accident occurred along a roadway somewhere on property with 1,000-foot frontage failed to provide a sufficient description of the location of the accident. In Allen v State of New York (UID No. 2001-013-032 [Ct Cl, Patti, J., Dec. 31, 2001]), the Court granted Defendant's motion to dismiss on the basis that the information contained in the Notice of Intention was not sufficient to allow the State to conduct any meaningful investigation even though State officials, at the park where Claimant was injured, were immediately made aware of Claimant's injury and, within approximately 10 minutes, began an investigation of the facts surrounding the incident. In Yanus v State of New York (35 Misc 3d 361 [Ct Cl 2011]), the Court determined that Claimant's description in the Claim as to where the Claim arose was insufficient. The Court concluded that Claimant's assertion that Defendant was later provided with the specific location of the incident in other documents was not persuasive as "the sufficiency of a claim rests solely upon the assertions contained therein and [D]efendant is not required to go beyond the [C]laim in order to investigate an occurrence or ascertain information that should have been provided pursuant to Court of Claims Act § 11" (id., 364-365, quoting Lepkowski v State of New York, 302 AD2d 765, 766 [3d Dept 2003] [citation omitted], affd 1 NY3d 201, supra; see also Sommer v State of New York, 131 AD3d 757, 758 n. 1 [3d Dept 2015]). Also, in Matter De Mairo v State of New York (57 Misc 3d 792, 798-799 [Ct Cl 2017], affd 172 AD3d 856 [2d Dept 2019]). Judge Faviola A. Soto stated:
Generally speaking, the purpose behind the specificity of a pleading required by section 11(b) is "to enable the State … to investigate the claim[s] promptly and to ascertain its liability under the circumstances." (Lepkowski, 1 NY3d at 207.) Whether the defendant actually suffers prejudice due to the lack of specificity is, however, immaterial (See Byrne v State of New York, 104 AD2d 782, 784 [2d Dept 1984].) "Even when [d]efendant has knowledge of the underlying facts and will suffer no prejudice by allowing the claim to proceed, the claim cannot be saved if it does not meet the minimal pleading requirements under the statute." (Sabine v State of New York [UID No. 2015-018-620 (Ct Cl, Fitzpatrick, J., May 28, 2015)]).
Just recently, the Appellate Division, Second Department, in Constable v State of New York (172 AD3d 681, 682 [2d Dept 2019]), decided a case where a Notice of Intention and a Claim alleged that Claimant had fallen "on the ground level of the Stony Brook University Hospital's North Visitor's Parking Lot, which is adjacent to the Emergency Room Entrance. Specifically, Claimant fell because of the hazardous conditions located adjacent to the column designated as D1 on the ground level." In support of its Motion to Dismiss, Defendant submitted the affidavit of the parking garage manager where Claimant fell, who averred that there are 28 columns labeled "D1" located on the ground level of the garage. The Court held that the Notice of Intention and the Claim failed to provide Defendant with a sufficient description of the place where the accident occurred.
Here, the Court concludes that the place where the Claim accrued is not sufficiently detailed in the Notice of Intention and the Claim. An allegation that the Claim accrued on "a paved roadway in the Moffitt Beach Campground, at a location approximately adjacent to camp sites numbered 33 and 34," without further specificity, is insufficient to meet the specificity requirements of Court of Claims Act § 11(b) in this case. The State, acting on the information contained in the Notice of Intention, attempted to investigate, but was unable to determine the location of the accident. However, it did ascertain that the name of the road adjacent to campsites 33 and 34 is Raccoon Alley. After the Claim was filed and discovery was commenced, Defendant was able to determine that the accident occurred, not on Raccoon Alley, but on "Main Campground Road/Moffitt Beach Road." That road runs perpendicular to Raccoon Alley. As in Yanus (supra), the sufficiency of the Claim rests upon the information provided in the Notice of Intention and the Claim, and Defendant does not have to investigate or ascertain information that should have been provided pursuant to Court of Claims Act § 11(b) (Lepkowski, 302 AD2d at 766 [supra]).
As the Court finds that the Notice of Intention fails to satisfy the pleading requirements of Court of Claims Act § 11(b), it did not extend Claimants' time to serve and file the Claim (Langner v State of New York, 65 AD3d 780, 782 [3d Dept 2009], citing Czynski v State of New York, supra at 883). Thus, the Claim served upon Defendant on February 13, 2018 and filed in the office of the Clerk of the Court on February 20, 2018 is untimely (Court of Claims Act § 10[3]) and Defendant's Motion to dismiss the Claim is granted. The remainder of the Motion is denied as moot.
The Court notes that Claimants' time to serve and file a Claim late pursuant to Court of Claims Act § 10(6) has not yet run as the underlying Statute of Limitations has not yet expired. The Court also notes that the infant Claimant appears to be the only person seeking damages, and, as she is a minor, the tolling provisions of Court of Claims Act § 10(5) may be applicable.
July 2, 2019
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 Motion to dismiss the Claim: Papers Numbered Notice of Motion, Affirmation in Support & Exhibits Attached, Memorandum of Law 1 Affidavit in Opposition & Exhibits Attached, Memorandum of Law 2 Defendant's Reply Affirmation 3 Claimants' Reply Affidavit 4 Defendant's Sur-Reply Affirmation 5 Papers Filed: Claim, Answer