Opinion
# 2016-009-003 Claim No. 126588 Motion No. M-87444
01-28-2016
PENNY A. MOREHOUSE v. THE STATE OF NEW YORK
MICHAELS & SMOLAK, P.C. BY: David A. Kalabanka, Esq., Of Counsel. HON. ERIC T. SCHNEIDERMAN Attorney General BY: Bonnie Gail Levy, Esq., Assistant Attorney General, Of Counsel.
Synopsis
Defendant's motion to dismiss the claim based upon claimant's alleged failure to satisfy the pleading requirements of Court of Claims Act § 11 (b) was denied, based upon the Court's finding that claimant had sufficiently alleged a serious injury as required by CPLR 3016 (g) and Insurance Law § 5102 (d) and 5104 (a).
Case information
| UID: | 2016-009-003 |
| Claimant(s): | PENNY A. MOREHOUSE |
| Claimant short name: | MOREHOUSE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126588 |
| Motion number(s): | M-87444 |
| Cross-motion number(s): | |
| Judge: | NICHOLAS V. MIDEY JR. |
| Claimant's attorney: | MICHAELS & SMOLAK, P.C. BY: David A. Kalabanka, Esq., Of Counsel. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General BY: Bonnie Gail Levy, Esq., Assistant Attorney General, Of Counsel. |
| Third-party defendant's attorney: | |
| Signature date: | January 28, 2016 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant has brought this motion seeking an order dismissing the claim on the basis that the Notice of Intention to File a Claim and the Claim fail to state a cause of action, and also that the Notice of Intention to File a Claim and the Claim were not timely filed or served.
The following papers were considered by the Court in connection with this motion:
Notice of Motion; Affirmation, with Exhibits 1, 2
Reply Affidavit, with Exhibit 3
In this claim, claimant alleges that she was seriously injured in an automobile accident on January 20, 2014 in the Town of Scriba, due to the negligent operation of a motor vehicle by New York State Trooper Eric D. Parsons.
The parties acknowledge that a Notice of Intention to File a Claim was served upon the Attorney General's Office by certified mail, return receipt requested, on March 24, 2014. The parties further acknowledge that the claim was served upon the Attorney General on August 17, 2015, also by certified mail, return receipt requested. Records of this Court establish that the claim was filed with the Clerk of the Court Claims on August 13, 2015. As set forth in the Reply Affidavit of claimant's counsel, the claim was also personally served upon Assistant Attorney General Ray A. Kyles on August 24, 2015 (Exhibit 1 to Item 3).
Defendant now moves to dismiss the claim, contending that claimant has failed to set forth, either in the Notice of Intention to File a Claim or the Claim, sufficiently detailed facts constituting a serious physical injury as required by Insurance Law § 5102 (d) and § 5104 (a), and therefore has failed to satisfy the pleading requirements of Court of Claims Act § 11 (b). In accordance with CPLR 3016 (g), defendant further contends that since the notice of intention fails to satisfy the requirements of Court of Claims Act § 11 (b), it is defective and must be considered a nullity, thereby depriving claimant of the extension of time to file and serve her claim as provided by Court of Claims Act § 10 (3) and/or § 10 (3-b), rendering service and filing of the claim untimely.
There is no question that Section 11 (b) of the Court of Claims Act requires that a claim state the time when and place where the claim arose, the nature of the claim, and the items of damage or injuries claimed to have been sustained. It further requires that a Notice of Intention to File a Claim must set forth the same matters as the claim, except that the items of damage or injuries need not be stated. Furthermore, a failure to comply with Section 11 (b) is a jurisdictional defect requiring dismissal of the claim (Kolnacki v State of New York, 8 NY3d 277 [2007]; Lepkowski v State of New York, 1 NY3d 201 [2003]).
In this particular matter, defendant contends that claimant failed to set forth, with sufficient specificity, any injuries which would constitute a serious physical injury under the law.
CPLR 3016 (g), however, only requires that the pleadings state that a "serious injury" as defined in Subsection (d) of Section 5102 of the Insurance Law, or economic loss defined in Subsection (a) of Section 5014, be stated.
In her Notice of Intention to File a Claim, claimant has alleged "[a]s a result of this collision, claimant sustained a serious injury as defined in New York State Insurance Law § 5102 (d)" (see Notice of Intention to File a Claim [Exhibit A to Items 1, 2]), thereby clearly satisfying this pleading requirement (McGovern v Martin, 122 AD2d 333 [3d Dept 1986]).
Similarly, the claim alleges that: "[t]he claimant suffered a serious injury as it is defined in New York State Insurance Law, in that she sustained a permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of an organ or member; a significant limitation of use of a body function or system; and was prevented from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury." (See Claim, Exhibit B to Items 1, 2).
Based on the foregoing, this Court finds that the claimant has satisfied the pleading requirements of Section 11 (b) of the Court of Claims Act, in both her Notice of Intention to File a Claim and her Claim, when considered in conjunction with the requirements of CPLR § 3016 (g) and Insurance Law § 5102 (d) and § 5104 (a). The Notice of Intention to File a Claim, since it was timely served, provided claimant with the extension of time in which to serve and file her claim provided by Section 10 (3) and/or Section 10 (3-a). The claim itself was then timely served and filed in accordance with the same provisions of law.
Based on the foregoing, therefore, it is
ORDERED, that motion No. M-87444 is hereby DENIED.
January 28, 2016
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims