Opinion
Claim No. 136312
02-09-2022
Karlene PRESSLEY, Claimant, v. The STATE of New York, Defendant.
For Claimant: SHULMAN & HILL, PLLC, By: Michael Zogala, Esq. For Defendant: LETITIA JAMES, Attorney General for the State of New York, By: Dian Kerr McCullough, Assistant Attorney General
For Claimant: SHULMAN & HILL, PLLC, By: Michael Zogala, Esq.
For Defendant: LETITIA JAMES, Attorney General for the State of New York, By: Dian Kerr McCullough, Assistant Attorney General
Walter Rivera, J.
The following papers numbered 1-3 were read and considered by the Court on the State's motion to dismiss and claimant's cross-motion for permission to amend the claim or to file a late notice of intention:
Notice of Motion, State's Attorney's Supporting Affirmation, and Exhibit 1
Attorney's Affirmation Opposing Motion and Supporting Cross-Motion, and Exhibit 2
State's Attorney's Affirmation in Reply, and Opposing Cross-Motion 3
Claimant's Attorney's Reply Affirmation 4
The instant claim for negligence alleges that on March 16, 2021, at approximately 3:37 p.m., claimant was injured when her vehicle was struck on the Sprain Brook Parkway, in the City of Greenburgh, County of Westchester, by a vehicle owned by New York State and the New York State Police Department, and operated by Steve Cox. The claim was filed on April 30, 2021.
The Court takes judicial notice that Greenburgh is an incorporated town and not a city (see greenburghgov.com).
The State brings this motion to dismiss the claim on the grounds of failure to provide sufficient details to satisfy the pleading requirements of Court of Claims Act § 11 (b), and failure to state a cause of action pursuant to CPLR 3211 (a) (2) and (a) (7). Claimant opposes the motion to dismiss and cross-moves to amend the claim pursuant to CPLR 2001 and Court of Claims Act § 9 (8), or alternatively to permit the filing of a late notice of intention pursuant to Court of Claims Act § 10 (6). The State opposes the cross-motion.
Motion to Dismiss (Motion No. M96960)
The pleading requirements set forth in Court of Claims Act § 11 (b) provide that a claim shall set forth "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, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed." "[T]he sufficiency of a claim rests solely upon the assertions contained therein, and [the State] is not required to go beyond the claim in order to investigate" ( Lepkowski v State of New York , 1 NY3d 201, 206 [2003] ). The " ‘satutory requirements conditioning suit must be strictly construed’ " ( Kimball Brooklands Corp. v State of New York , 180 AD3d 1031, 1032 [2d Dept 2020], quoting Lichtenstein v State of New York , 93 NY2d 911, 913 [1999] ). The State "is not required to ferret out or assemble information that section 11 (b) obligates the claimant to allege" ( Davila v State of New York , 140 AD3d 1415, 1416 [3d Dept 2016] [citations omitted]). A claimant's failure to meet the substantive requirements of Court of Claims § 11 (b) constitutes a jurisdictional defect mandating dismissal (see Lepkowski , 1 NY3d at 209 ; Fairchild Corp. v State of New York , 117 AD3d 780, 780 [2d Dept 2014] ).
The claim (Ex. A) alleges, for "[t]he time when, the place where and the manner in which the claim arose," only that:
"[t]he claim arose on March 16, 2021 at approximately 3:37 p.m. on the Sprain Brook Parkway in the City [sic] of Greenburgh, County of Westchester and State of New York. At the time and place of the occurrence, the claimant was operating a 2018 Acura motor vehicle with New York State license plate KGD5085 a [sic] on Sprain Brook Parkway when her vehicle was struck by a 2019 Dodge motor vehicle owned and maintained by the State of New York and New York State Police Department and Operated by STEVE COX, and caused the claimant to sustain injuries described herein."
The claim also refers to a police report that was attached, but no such police report was submitted to the Court with the filed claim.
The claim is devoid of any facts to indicate exactly the location on the Sprain Brook Parkway in the Town of Greenburgh that the accident took place. Where, as here, the alleged defect is in an open setting, specificity in the description of the location of the incident is of "heightened significance" ( Wilson v State of New York , 35 Misc 3d 227, 231 [Ct Cl 2011] ). The entire stretch of the Sprain Brook Parkway that runs through the Town of Greenburgh is an open setting. Without more detail, such as a mile marker, the lane in which claimant was driving and the direction she was heading, the State could not investigate the incident and its potential liability without going outside the claim. Accordingly, the Court finds that the claim fails to meet the requirements of Court of Claims Act § 11 (b) to set forth a sufficiently detailed description of the location where the claim arose.
The claim also sets forth only broad allegations of negligence. Other than alleging that claimant's vehicle was struck by a State vehicle, there is no description of the accident or of anything in particular that the State did or did not do that is alleged to have been negligent. There are only general, categorical allegations that the State, the operator of the State-owned vehicle and their agents or employees acted negligently "regarding their ownership, operation, maintenance, control, possession, construction, supervision, hiring, training, inspection, management and repair of the location in question" (Ex. A). " ‘[C]onclusory or general allegations of negligence that fail to [state] the manner in which the claimant was injured and how the State was negligent do not meet [the statute's] requirements’ " ( Kimball Brooklands Corp. , 180 AD3d at 1032, quoting Wharton v City Univ. of NY , 287 AD2d 559, 560 [2d Dept 2001] [citations omitted]). As a result, the State did not have an opportunity to investigate the claim promptly and to determine its liability. Therefore, the claim is jurisdictionally defective. Based on the above finding, it is not necessary for the Court to reach the second ground for the State's motion, that the claim should be dismissed under CPLR 3211 (a) (7) for failing to state a cause of action.
Cross-Motion (Cross-Motion No. CM-97353)
Claimant seeks to amend the claim pursuant to CPLR 2001 and Court of Claims Act § 9 (8). The State argues correctly that a jurisdictionally defective claim may not be cured by amendment (see Matter of DeMairo v State of New York , 172 AD3d 856, 857 [2d Dept 2019] ; Acosta v State of New York , 270 AD2d 164, 165 [1st Dept 2000] ). The instant claim is jurisdictionally defective in that it fails to provide sufficient details as to the location of the accident and does not indicate the nature of the claim with particularity as required by Court of Claims Act § 11 (b). Thus, the instant claim may not be cured by amendment.
Claimant submitted a proposed amended verified claim as Exhibit 1. The submitted document is also jurisdictionally defective in that it continues to lack sufficient detail about the location of the accident and the nature of the claim.
Claimant also seeks permission to file and serve a late notice of intention pursuant to Court of Claims Act § 10 (6). Section 10 (6) grants the court the discretion to allow the filing of a late claim upon consideration of six factors set forth in the statute and other relevant factors. The Court of Claims Act contains "a single discretionary remedy for persons who fail to either serve a notice of intention or file and serve a claim proper within the time constraints set forth within section 10. That remedy would be a late claim, and no allowance otherwise exists within the Court of Claims Act for the relief now sought," which is the filing of a late notice of intention ( Holmes v State of NY, Roswell Park Cancer Inst. Corp. , 5 Misc 3d 446, 448-449 [Ct Cl 2004] ). Indeed, allowing a notice of intention to be filed late, and thereby trigger the two-year extension of time to file a claim set forth in Court of Claims Act § 10 (3), would render that section's ninety-day deadline for filing and serving a claim or serving a notice of intention null and void.
The parties’ motion papers address the six factors set forth in section 10 (6) at some length. The Court does not need to do the same because the statute does not apply to the relief requested here, to wit, permission for the late filing of a notice of intention. Even if the Court were to consider the motion as requesting permission to file a late claim, claimant failed to demonstrate her entitlement to the relief provided by section 10 (6). Specifically, claimant failed to show that the State had notice of the essential facts constituting the claim, an opportunity to investigate the circumstances underlying the claim and that the claim has the appearance of merit.
Accordingly, the State's motion to dismiss the claim is GRANTED and the claim is dismissed. The cross-motion for permission to amend the claim or to file a late notice of intention is DENIED.