Opinion
# 2016-009-010 Claim No. 126572 Motion No. M-87269 Cross-Motion No. CM-87465
03-28-2016
SOPHIA LA FONTAINE v. THE STATE OF NEW YORK
WOODRUFF LEE CARROLL, P.C. BY: Woodruff Lee Carroll, Esq., Of Counsel. HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York BY: Bonnie Gail Levy, Esq., Assistant Attorney General, Of Counsel.
Synopsis
Defendant's motion to dismiss the claim under Section 11 (b) was granted, but claimant's cross motion requesting that her previously served Notice of Intention be deemed a claim was granted.
Case information
| UID: | 2016-009-010 |
| Claimant(s): | SOPHIA LA FONTAINE |
| Claimant short name: | LA FONTAINE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126572 |
| Motion number(s): | M-87269 |
| Cross-motion number(s): | CM-87465 |
| Judge: | NICHOLAS V. MIDEY JR. |
| Claimant's attorney: | WOODRUFF LEE CARROLL, P.C. BY: Woodruff Lee Carroll, Esq., Of Counsel. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York BY: Bonnie Gail Levy, Esq., Assistant Attorney General, Of Counsel. |
| Third-party defendant's attorney: | |
| Signature date: | March 28, 2016 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant has brought a motion (M-87269) seeking an order dismissing the claim on the grounds that the claim fails to comply with the pleading requirements of Section 11 (b) of the Court of Claims Act, and is therefore jurisdictionally defective. Claimant not only has opposed this motion, but has also instituted a cross motion (CM-87465) requesting that this Court deem her previously served Notice of Intention to File a Claim as the claim, or in the alternative granting her late claim relief under Section 10 (6) of the Court of Claims Act.
The following papers were considered by the Court in connection with these motions:
Notice of Motion; Affirmation, with Exhibits (M-87269) 1, 2
"Answer to Defendant's Motion to Dismiss," with Attachments (M-87269) 3
"Cross Motion to 1. File a Late Claim, and 2. To Convert Notice of Claim to a Claim," with Attachments (CM-87465) 4
Signed Copy of Proposed Claim, submitted in connection with CM-87465 5
Correspondence from Assistant Attorney General Bonnie G. Levy dated October 20, 2015,
in Opposition to cross motion (CM-87465) 6
In her proposed claim, as well as set forth in the papers submitted with the motion and cross motion, claimant seeks damages for personal injuries allegedly suffered by her when she slipped and fell on the stairs in the food court in the International Building at the New York State Fair on August 26, 2013. She alleges that the State negligently maintained the premises by allowing the stairs and floor to be left in a wet and slippery condition.
PROCEDURAL HISTORY
Claimant initially served a Notice of Intention to File a Claim upon the Office of the Attorney General on October 4, 2013. Claimant then served and filed a claim seeking damages based upon the incident described above, which was assigned claim No. 125015.
In a prior motion (M-85850), however, defendant moved to dismiss the claim, contending that both the Notice of Intention to File a Claim and the Claim failed to comply with the pleading requirements of Court of Claims Act § 11 (b). Furthermore, based upon the alleged deficiencies within the notice of intention, defendant argued that it should be treated as a nullity, and that therefore failed to extend the time within which claimant had to serve and file her claim, thereby rendering her claim untimely under Court of Claims Act § 10 (3).
La Fontaine v State of New York, UID No. 2015-009-011 [Ct Cl, Midey, J., May 7, 2015]). Unpublished decisions and selected orders of the Court of Claims are available via the Internet at http://www.nyscourtofclaims.state.ny.us.
In a Decision and Order dated May 7, 2015 (M-85850), this Court determined that claimant's Notice of Intention to File a Claim was adequate under Section 11 (b), in that it adequately set forth the time when and place where the claim arose, as well as the "general nature of the claim" (Sega v State of New York, 246 AD2d 753, 755 [3d Dept 1998], lv denied 92 NY2d 805 [1998]). The Court therefore concluded that the Notice of Intention to File a Claim substantially complied with Section 11 of the Court of Claims Act (Heisler v State of New York, 78 AD2d 767, 768 [4th Dept 1980]).
However, this Court further determined that the claim (No. 125015) that had been served upon the Attorney General and filed with the Court of Claims did not sufficiently describe the location of the accident, nor did it make any reference to any specific acts of negligence committed by the State, nor did it allege that the State was on notice of any dangerous condition or conditions. As a result, this Court granted defendant's motion (M-85850) and dismissed claim No. 125015, without prejudice.
Since the Notice of Intention was timely served and found to be adequate under Court of Claims Act § 11 (b), claimant still had sufficient time to timely serve and file a new claim under Section 10 (3), without leave of Court, since the alleged accident had occurred on August 26, 2013. --------
Subsequently, claimant did in fact serve and file a new claim, which has been assigned claim No. 126572.
By this motion, defendant again seeks an order dismissing the claim on the basis that it fails to comply with the pleading requirements of Court of Claims Act § 11 (b). The Court will therefore address this motion to dismiss prior to any consideration of claimant's cross motion.
MOTION NO. M-87269
Defendant seeks to dismiss this claim, contending that it fails to comply with the pleading requirements of Court of Claims Act § 11 (b), in that it fails to specify the injuries allegedly suffered by claimant in this accident.
Court of Claims Act § 11 (b), among other things, 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 . . ." The failure to satisfy these requirements under Section 11 (b) results in a jurisdictional defect, requiring dismissal of the claim (Lepkowski v State of New York, 1 NY3d 201 [2003]; Kolnacki v State of New York, 8 NY3d 277 [2007]). As a result, the failure to set forth the items of damage or injuries sustained renders a claim jurisdictionally defective and subject to dismissal (Lepkowski, supra; Kolnacki, supra; Davis v State of New York, 64 AD3d 1197 [4th Dept 2009], lv denied 13 NY3d 717 [2010]).
In this particular matter, the only reference to damages or injuries is that the State's "acts of negligence caused the Plaintiff [sic] to slip and fall and injure herself" (Claim, par. 13), and that "[t]he Plaintiff [sic] was injured in said fall as a result of said negligence and suffered damages" (Claim, par. 15). These unsupported statements of damages clearly fail to provide the State with any notice or information regarding the extent or type of injuries allegedly suffered by claimant in this slip and fall. These allegations fall far short of satisfying the relatively minimal pleading requirements of Section 11 (b), and as a result, the filed claim must be, and is, dismissed.
Based upon this determination, the Court will consider the requests for relief made by claimant in her cross motion.
CROSS MOTION NO. CM-87465
As stated at the outset herein, claimant has brought a cross motion seeking an order, in the alternative, deeming her notice of intention as a claim under Court of Claims Act § 10 (8), or granting her permission to serve and file a late claim under Court of Claims Act § 10 (6).
Court of Claims Act § 10 (8)(a) permits a claimant who has timely served a notice of intention to apply to the Court for permission to treat that notice of intention as a claim. The application must be made "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant."
In this Court's prior Decision and Order (M-85850), and as previously stated, this Court determined that claimant's previously served Notice of Intention substantially complied with the requirements of Section 11 (b). Additionally, and unlike the filed claim (No. 126572) the Notice of Intention which was served upon the Attorney General alleged that "[t]he Plaintiff [sic] received bruises, damage to her chest and ribs, arm, hand and hip. She may have fractures. She is under consideration for surgery." Claimant further stated that "[t]he Plaintiff [sic] is unable to particularize her damages further at this time."
The Court finds that these allegations (which were not set forth in her filed claim) are adequate (barely) to satisfy the pleading requirements of Section 11 (b) which require that a claim state "the items of damage or injuries claimed to have been sustained."
The Court finds that claimant's application under Court of Claims Act § 10 (8)(a) to treat her Notice of Intention as a claim has been timely made; that the Notice of Intention was timely served; that the Notice of Intention contains facts sufficient to constitute a claim; and that defendant will not be prejudiced should this application be granted.
Therefore, though the filed claim in this matter is dismissed (as discussed above), this Court grants claimant's cross motion and deems her Notice of Intention, which was served upon the Attorney General on October 4, 2013, as a claim.
Since Section 10 (3) of the Court of Claims Act (pertaining to damages for personal injuries caused by the alleged negligence of an officer or employee of the state) no longer provides for (or permits) the filing of a notice of intention, claimant is hereby directed to file her Notice of Intention with the Clerk of the Court of Claims within 40 days from the date of filing of this Decision and Order. Claimant is instructed to caption said Notice of Intention as a "Claim" and to serve said claim in accordance with the Court of Claims Act. Pursuant to Section 206.7 of the Uniform Rules for the Court of Claims, defendant shall then serve and file its Answer within 40 days after such service.
Finally, based upon this Court's determination that the Notice of Intention is hereby deemed the claim, it is not necessary for this Court to address or consider claimant's alternative request for late claim relief under Court of Claims Act § 10 (6).
Accordingly, it is
ORDERED, that defendant's motion No. M-87269 seeking dismissal of the claim is hereby GRANTED; but it is further
ORDERED, that claimant's cross motion No. CM-87465 is also GRANTED, to the extent that her previously served Notice of Intention is hereby deemed a claim; and it is further
ORDERED, that claimant shall file said Notice of Intention, captioned as a "Claim," with the Clerk of the Court of Claims within 40 days from the date of filing of this Decision and Order.
March 28, 2016
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims