Opinion
# 2017-050-005 Claim No. 126325 Motion No. M-89259
02-24-2017
KRISTOFER ROSSELLO v. THE STATE OF NEW YORK
Beal & Beal, Esqs. By: Kenneth Beal, Esq. Hon. Eric T. Schneiderman, NYS Attorney General By: John L. Belford, IV, Assistant Attorney General
Synopsis
The instant claim fails to satisfy the strict pleading requirements of Court of Claims Act §11(b) and defendant's motion to dismiss is therefore granted.
Case information
| UID: | 2017-050-005 |
| Claimant(s): | KRISTOFER ROSSELLO |
| Claimant short name: | ROSELLO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126325 |
| Motion number(s): | M-89259 |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. LYNCH |
| Claimant's attorney: | Beal & Beal, Esqs. By: Kenneth Beal, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: John L. Belford, IV, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 24, 2017 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This claim accrued in the wee hours of September 15, 2013 when claimant attempted to walk across an intersection involving a state highway and was struck by a motor vehicle. In his notice of intention to file a claim, served October 16, 2013, claimant alleged that the street lights on the state highway were not operating, causing the roadway to be dangerously dark. A claim that was substantially similar to the notice of intention to file a claim was filed with the Clerk of this Court on June 22, 2015, asserting defendant's negligent maintenance and defective design of the roadway at the site of the accident. Issue was joined on July 20, 2015 by the filing of a verified answer. Among other affirmative defenses, defendant's answer asserted that this Court lacked subject matter jurisdiction over the claim and personal jurisdiction over the defendant, due to the claim's failure to comply with Court of Claims Act (CCA) § 11 (see defendant's fourth affirmative defense). This motion was filed by defendant on September 21, 2016.
Defendant moves for an order dismissing the claim pursuant to CPLR 3211(a) (2) and (8) and CCA § 11. Specifically, defendant argues that the claim's assertion of loss in the amount of $10,000,000.00 for "serious personal injuries sustained, pain and suffering, expenses for medical aid and attention, and loss of earnings," inadequately alleges the actual injuries suffered and thus renders the claim jurisdictionally deficient for lack of compliance with CCA § 11(b). Claimant concedes that strict compliance with section 11(b) is a precursor to this Court having the authority to hear his claim, but argues that the requirement is met by the claim's description of the type of damages suffered and "illuminated" by the $10 million dollar loss amount (see affirmation in opposition). The question posed in this motion then, is whether a general, but not itemized, description of harm is sufficient to satisfy the requirements of section 11 (b) that "the items of damage or injuries claimed" be set forth in the claim.
The State has waived its sovereign immunity from liability under section 8 of the CCA, "provided the claimant complies with the limitations of this article [§§ 8-12]." The Court of Appeals has repeatedly held that "[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed." (In re Matter of New York City Asbestos Litig. v Aluminum Co. of America, 24 NY3d 275, 281 [2014], citing Kolnacki v State of New York, 8 NY3d 277, 280 [2007]; see also Lichtenstein v State of New York, 93 NY2d 911, 913 [1999]; Lepkowski v State of New York, 1 NY3d 201, 206 [2003]). Thus, in terms of pleading requirements, those laid out in CCA § 11 (b) must be met precisely. The section 11 (b) criteria are as follows:
The 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, except in an action to recover damages for personal injury, medical, dental or podiatry malpractice or wrongful death, the total sum claimed. ... The 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."
(emphasis added).
The purpose behind the specificity of 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." (Lepowski v State of New York, 1 NY3d 201, 207 [2003], quoting Heisler v State of New York, 78 AD2d 767; see also Cobin v State of New York, 234 AD2d 498, 499 [N.Y. App. Div. 2d Dept 1996]). The requirement of a sufficiently detailed description of the particulars of the claim is to allow the State to determine the existence and extent of liability (see Morra v State of New York, 107 AD3d 1115 [N.Y. App. Div. 3d Dept 2013]; Sinski v State of New York, 265 AD2d 319 [N.Y. App. Div. 2d Dept 1999]). Whether the defendant suffers prejudice due to the lack of specificity is immaterial (see Byrne v State of New York, 104 AD2d 782 (N.Y. App. Div. 2d Dept 1984]). "Even when defendant had 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. 2015-0018-620 [Fitzpatrick, J., May 28, 2015]).
In this case, the only language relating to items of damage or injury in the claim filed June 22, 2015 (apart from similar language quoted above) is the following: ". . . and said claimant demands judgment against the Respondent for the following amounts: That particulars of claimant's damages are as follows: (a) Personal injuries, pain and suffering and medical expenses. . . $10,000,000.00; (b) MagnaCare Medical Lien - Amount of bill not presently available." In other words, the claim provides literally no description of the injuries allegedly suffered in this case. It does put forth $10 million dollars as the total sum of damages (apart from a medical lien for unknown injuries), but this does not satisfy the requirement for actual injury suffered, and is in fact superfluous in a personal injury case.
The medical lien flows from the unspecified injury, but is not the actual injury which would enable defendant to determine the extent of liability at issue.
Claimant argues that because he suffered personal injuries, his claim is "subjective in nature, so he illuminated it with the total of his damages even though the statute no longer requires it. Within the scope of the claim, it does not matter whether he broke one leg or two" (see affirmation in opposition, at ¶ 5). Initially, claimant's argument fails because although pain is, of course, a subjective matter, bodily injuries generally are not. When a pedestrian is hit by a car, treating medical professionals are able to objectively identify and treat the specific injuries suffered. More importantly, the relevant case law, as well as the language of section 11 (b) itself, demonstrate that in a personal injury or medical malpractice case the claim must assert a specific bodily injury. The seminal section 11 (b) case is Lepowski v State of New York, 1 NY3d 201, 207 (2003). In Lepkowski, the claims of civil service employees seeking overtime pay were dismissed for failure to comply with the pleading requirements of section 11 (b). Although claimants sought "recovery of all unpaid overtime compensation for all hours worked over 40 hours a work week and not compensated at one and one half times the regular rate," the Court of Appeals held that this description of the items of damage or injuries was insufficiently definite. Here, claimant's pleading of injury is not even as detailed as that which failed in Lepkowski. Further, in a case almost exactly on point, a claimant's failure to set forth any specific bodily injury in a medical malpractice case was held to render the pleading jurisdictionally defective (see Caggiano v State of New York, UID No. 2007-041-024 [Milano, J., June 5, 2007]) (the Court had no jurisdiction over claim alleging unspecified injuries and damages of $10,000,000.00 "for severe, serious and permanent debilitating injuries, mental anguish, pain and suffering, loss of enjoyment of life, economic and pecuniary loss, and other damages").
Finally, the language in 11 (b) itself provides guidance on the issue. As noted, the claim must include the "items of damage or injuries claimed to have been sustained." Section 11(b) further provides that a notice of intention to file a claim shall set forth the same matters required in the claim itself, except that "the items of damage or injuries and the sum claimed need not be stated." In other words, when the harm is fresh and a claimant may not yet know the exact extent of their injuries, a less detailed notice of intention to file a claim is sufficient. In a personal injury case such as the one at bar, the pleading of serious personal injury would suffice in a notice of intention to file a claim. In the interim between service of the notice of intention to file claim, and the filing of the actual claim, however, (which in this case was almost 22 months), the claimant presumably has ample time to identify the extent of their injury and is then required to detail the specific injuries suffered. This statutory allowance of less detail in the notice of intention to file a claim, provides further support for the conclusion that a specific injury must be alleged in the claim. Arguably, the terms claimant relies on here in support of claimant's proposed construction of section 11 (b) - "personal injury," "pain and suffering" and "medical expenses" - go to the nature of the claim and the categories of damages involved, rather than the statutory requirement of "items of damage." In any event, these terms, without more, do not satisfy section 11 (b).
For the reasons discussed above, the defendant's motion to dismiss is granted and the claim is dismissed.
February 24, 2017
Hauppauge, New York
STEPHEN J. LYNCH
Judge of the Court of Claims The following papers were read and considered by the Court on the defendant's motion to dismiss: 1. Notice of Motion, Affirmation in Support with Exhibits A through E. 5. Affirmation in Opposition. 6. Reply Affirmation.