Opinion
# 2014-018-537 Claim No. 124399 Motion No. M-85336
10-06-2014
FRANCISCO SAAVEDRA v. STATE OF NEW YORK
FRANZBLAU DRATCH, P.C. By: Ekaterina Vyrkin, Esquire ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Bonnie Gail Levy, Esquire Assistant Attorney General SUSAN B. OWENS, ESQUIRE1
Synopsis
Claim is dismissed for failure to state a cause of action under CPLR 3211 (a) (7).
Case information
A substitution of attorney form was filed after the motion was filed but had not yet been decided.
Decision
Defendant brings a pre-answer motion to dismiss the claim for lack of personal and subject matter jurisdiction, failure to state a cause of action, and failing to plead a "serious injury" as required by CPLR 3016 (g). Claimant opposes the motion.
The claim arises from a motor vehicle accident in which Claimant, an inmate, was a passenger on a bus enroute to Walsh Medical Center. The collision involved two State vehicles at Auburn Correctional Facility.
Defendant received a claim by certified mail, return receipt requested, on May 22, 2014. This claim was filed with the Clerk of the Court on May 21, 2014. This claim was served within 90 days of the accrual of the action.
Defendant contends the claim fails to meet the Court of Claims Act section 11 (b) requirements, in that it fails to adequately set forth the location of the accident or manner in which the State was negligent. That statute provides:
"[t]he claim shall state [1] the time when and [2] the place
where such Claim arose, [3] the nature of same, [and] [4]
the items of damage or injuries claimed to have been
sustained."
"The failure to satisfy any of the [requirements in the statute] is a jurisdictional defect." (Kolnacki v State of New York, 8 NY3d 277, 281 [2007]). The Court of Appeals has consistently held that "nothing less than a strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary." (see Id.; Lepkowski v State of New York,1 NY3d 201 [2003]; Lichtenstein v State of New York, 93 NY2d 911, 913 [1999]; Dreger v New York State Thruway
Auth., 81 NY2d 721, 724 [1992]). If the substantive pleading details are not sufficiently provided, the Court lacks subject matter jurisdiction (Lepkowski v State of New York, 1 NY3d at 209).
In considering the sufficiency of the claim, the guiding principle requires "a statement made with sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances." (Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]).
The description in the claim alleging that the State's agents or employees were negligent in the operation of the bus, in failing to drive it safely, and allowing Claimant to be transported without a seatbelt adequately meet the requirements of Court of Claims Act section 11 (b). The allegations place the State on notice of how it was negligent or permit a reasonable inference of its wrongdoing (Heisler v State of New York, 78 AD2d at 768; Santos v State of New York, 291 AD2d 851 [4th Dept 2002]; see also Klos v State of New York, 19 AD3d 1173 [4th Dept 2005], ["damage sustained from broken weights falling on my ankle braken (sic) it (235 pounds)" was sufficient to allow State to infer its negligent maintenance of weights was being alleged]).
The description of the location of the incident as Auburn Correctional Facility requires more discussion. There are many cases where providing little more than the name of the venue where the incident occurred has been found to be insufficient (Wilson v State of New York, 61 AD3d 1367, 1368 [4th Dept 2009], [fall occurred in draft processing area or between draft processing area and claimant's cell block, insufficient]; Triani v State of New York, 44 AD3d 1032 [2d Dept 2007], [fall on sidewalk abutting Kingsboro Hospital, at 681 Clarkson Avenue in Brooklyn, not sufficient]; Sheils v State of New York, 249 AD2d 459 [2d Dept 1998], [fall occurred on named roadway in front of church property with 1,000 feet of road frontage, found insufficient]; Cobin v State of New York, 234 AD2d 498, 499 [2d Dept 1996], [fall occurring on "boardwalk at Jones Beach," insufficient]). These cases often involve alleged defects with the premises, where the specific details of the location are critical to the State being able to assess the condition of the exact area where the incident occurred. A definitive location is less crucial when the wrongdoing involves actions or inactions of State agents or employees, particularly when the incident was of the type that naturally would be documented.
In Deep v State of New York, 56 AD3d 1260 [4th Dept 2008], the Appellate Division of the Fourth Department found a claim which identified the location of an accident involving a State vehicle, as "Old River Road" in the Town of Marcy, County of Oneida, sufficient, even though no precise location was identified on the 3.2 mile road. The Court emphasized that the alleged negligent actor was a State agent. Similarly, in this case, it is the collision of two State vehicles, as the result of the negligence of at least one State agent or employee, that is alleged to have caused Claimant's injuries. The location, as described, along with the other details provided, i.e., the date and approximate time of the accident, bus number, and ultimate destination, coupled with the involvement of the State actor in a motor vehicle accident with two State vehicles is sufficient to allow the State to conduct its investigation.
There is, however, a problem with the claim that requires its dismissal. The claim seeks damages for Claimant's personal injuries arising out of the operation of a motor vehicle. CPLR 3016 (g) requires in such cases that the pleading shall state that Claimant "sustained a serious injury, as defined in subsection (d) of section five thousand one hundred two of the insurance law, or economic loss greater than basic economic loss as defined in subsection (a) of section five thousand one hundred two of the insurance law" (CPLR 3016 [g]).
Claimant's allegations in the claim that he was caused to "suffer excruciating pain and suffering; injury to his arms; injury to lower back and neck" does not clearly set forth a claim of serious injury under the Insurance Law. Insurance Law section 5102 (d) provides:
Claim, ¶ 4.
"'Serious injury' means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."
The failure to plead serious injury or to seek to amend the claim to assert this allegation warrants dismissal for failure to state a cause of action under CPLR 3211 (a) (7) (Watford v Boolukos, 5 AD3d 475 [2d Dept 2004]; Simone v Streeben, 56 AD2d 237 [3d Dept 1977]; Elliott v State of New York, UID No. 2003-015-311 [Ct Cl, Collins, J., Jan. 28, 2003]).
This dismissal is without prejudice to a late claim application.
Accordingly, Defendant's motion is GRANTED and the claim is DISMISSED.
October 6, 2014
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following documents in deciding this motion:
1) Notice of Motion.
2) Affirmation of Bonnie Gail Levy, Esquire, Assistant Attorney General, in support,
with exhibits attached thereto.
3) Affirmation of Ekaterina Vyrkin, Esquire, in opposition, with exhibit attached thereto.