Opinion
# 2015-009-012 Claim No. 125036 Motion No. M-85898
05-05-2015
BRANDY FERRIS, as the Parent and Natural Guardian of LUCAS FAIRLIE v. THE STATE OF NEW YORK
NICHOLAS, PEROT, SMITH, WELCH & SMITH BY: Richard E. Derrick, Esq., Of Counsel. HON. ERIC T. SCHNEIDERMAN Attorney General BY: Edward F. McArdle, Esq., Assistant Attorney General, Of Counsel.
Synopsis
Defendant's motion to dismiss this claim based upon claimant's failure to comply with the pleading requirements of Section 11 (b) was granted.
Case information
| UID: | 2015-009-012 |
| Claimant(s): | BRANDY FERRIS, as the Parent and Natural Guardian of LUCAS FAIRLIE |
| Claimant short name: | FERRIS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125036 |
| Motion number(s): | M-85898 |
| Cross-motion number(s): | |
| Judge: | NICHOLAS V. MIDEY JR. |
| Claimant's attorney: | NICHOLAS, PEROT, SMITH, WELCH & SMITH BY: Richard E. Derrick, Esq., Of Counsel. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General BY: Edward F. McArdle, Esq., Assistant Attorney General, Of Counsel. |
| Third-party defendant's attorney: | |
| Signature date: | May 5, 2015 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant has brought this motion seeking an order dismissing the claim.
The following papers were considered by the Court in connection with this motion:
Notice of Motion; Affirmation, with Exhibits 1, 2
Claimant's Response, with Exhibits 3
This claim was filed with the Clerk of the Court of Claims on September 26, 2014 by Brandy Ferris as the Parent and Natural Guardian of Lucas Fairlie, an infant, based upon an incident which occurred on or about July 31, 2008 at Fillmore Glen State Park in the Town of Moravia, County of Cayuga, State of New York. The claim alleges that infant Lucas Fairlie was injured on or about the softball field at the park "as a result of the dangerous and hazardous conditions existing thereat" (see claim, para. 16).
Although not set forth in the claim, in claimant's response to this motion, claimant's attorney has affirmed that infant Lucas Fairlie is currently 15 years of age, having been born on August 25, 1999.
Defendant now moves to dismiss this claim, contending that the claim was untimely served and that it failed to comply with the statutory pleading requirements of Court of Claims Act § 11 (b).
With regard to timeliness, it appears that a Notice of Intention to File a Claim was mailed to the Attorney General on October 22, 2008, but was rejected by that office on October 27, 2008 as it was unverified. Regardless, this claim was filed and served a little more than six years after the date of the accident. Therefore, even if the Notice of Intention to File a Claim had been timely and properly served, and was not defective in any other manner, any extension of time to serve and file a claim (two years under Court of Claims § 10 [3]) has long since expired prior to the service and filing of the claim.
Claimant, however, relies upon Court of Claims Act § 10 (5), which provides that if the claimant is under a legal disability, the claim may be filed and served within two years after removal of the disability. Therefore, accepting the affirmation of claimant's attorney that Lucas Fairlie was, and still is, an infant, he is under a legal disability which will not be removed until he reaches 18 years of age. Accordingly, this claim is not subject to dismissal for untimely service and filing.
As mentioned above, however, defendant also seeks dismissal of this claim for failure to comply with the jurisdictional pleading requirements of Section 11 (b).
Section 11 (b) requires that a claim state "the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and . . . the total sum claimed." The guiding principle in determining the sufficiency of a claim is whether it is sufficiently definite "to enable the state . . . to investigate the claim promptly and to ascertain its liability under the circumstances . . ." (Heisler v State of New York, 78 AD2d 767 [4th Dept 1980]; see also Lepkowski v State of New York, 1 NY3d 201 [2003]). It is well settled that conclusory or general allegations of negligence that fail to state the manner in which the claimant was injured or how the State was negligent do not meet the pleading requirements of Court of Claims Act § 11 (b) (Patterson v State of New York, 54 AD2d 147 [4th Dept 1976], affd 45 NY2d 885 [1978]).
In this claim, claimant has alleged only that infant Lucas Fairlie "was playing at, or about, the softball field located on the property . . . and was caused without warning to suffer an accident as a result of the dangerous and hazardous condition existing thereat . . ." These conclusory and boilerplate allegations in the claim do not set forth either the manner in which the accident occurred, nor a statement as to how the defendant was negligent. Rather, it simply alleges that infant Lucas Fairlie was injured at or about the softball field at Fillmore Glen State Park. The mere occurrence of an accident on a softball field (or soccer field as the case may be) is insufficient, without more, to suggest that the defendant may be liable for this accident.
Confusing matters even more, in his affirmation submitted in opposition to this motion claimant's counsel states that infant Lucas Fairlie was injured on the "soccer field" at Fillmore Glen State Park (see claimant's response, para. 10).
The Court is aware that claimant's attorney has suggested that claimant be granted leave to amend his claim to comply with the requirements of Section 11 (b). However, amendments to cure a jurisdictional infirmity are not permitted (Grande v State of New York, 160 Misc 2d 383 [Ct Cl 1994]).
Even though this claim must be dismissed for failing to comply with the pleading requirements of Section 11 (b), the Court notes that pursuant to Section 10 (5), a new claim, in compliance with such pleading requirements, can be served and filed within two years after Lucas Fairlie reaches the age of majority.
Therefore, based upon the foregoing, it is
ORDERED, that motion No. M-85898 is hereby GRANTED; and it is further
ORDERED, that claim No. 125036 is hereby DISMISSED, without prejudice.
May 5, 2015
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims