Opinion
# 2015-018-620 Claim No. 125759 Motion No. M-86574
05-28-2015
SABINE v. STATE OF NEW YORK
KENNY & KENNY, PLLC By: Michael P. Kenny, Esquire ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Bonnie Gail Levy, Esquire Assistant Attorney General
Synopsis
Claimant has met the minimal requirements that he suffered a serious injury under Insurance Law sections 5102 (d) and 5104 (a) in accordance with CPLR 3016 (g). Defendant's portion of the motion to amend the caption is granted.
Case information
| UID: | 2015-018-620 |
| Claimant(s): | MICHAEL SABINE |
| Claimant short name: | SABINE |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | The Court has granted that portion of the Defendant's motion amending the caption to reflect the State of New York as the only proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125759 |
| Motion number(s): | M-86574 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | KENNY & KENNY, PLLC By: Michael P. Kenny, Esquire |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Bonnie Gail Levy, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 28, 2015 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant brings a pre-answer motion to dismiss the claim for failure to state a cause of action, lack of subject matter and personal jurisdiction and, alternatively, seeking to amend the caption to reflect only the "State of New York" as Defendant. Claimant opposes the motion.
On March 17, 2014, Defendant was personally served with a notice of intention indicating that the nature of the claim was for "severe and permanent personal injuries sustained by Michael Sabine" as a result of the "negligence, carelessness, recklessness and gross negligence" of the State by failing to properly "operate, control, maintain, manage the automobile" owned by New York State Parks and Recreation Department when "Linzy S. Patrick, negligently and carelessly operated the motor vehicle" thereby "causing a collision with claimant". Claimant indicated the incident arose on December 17, 2013, on "State Route 96A, Town of Waterloo, County of Seneca" when the claimant was "driving northbound on State Route 96A at approximately 12:44 p.m." when the New York State Parks and Recreation's vehicle employee "lost control of her vehicle spun out and landed in the intersection causing a collision." Claimant alleges that he suffered severe, permanent injuries and seeks damages for hospital, physician and other medical expenses, pain and suffering, loss of earnings, and quality and/or enjoyment of life.
Defendant's Exhibit A, Notice of Intention ¶ 2.
Defendant's Exhibit A, Notice of Intention ¶ 3.
A claim was thereafter personally served upon the defendant on March 10, 2015. In addition to providing the same information about the accident, it describes the New York State Parks and Recreation Department's vehicle involved as a 2008 Chevy Pickup with New York State license plate number 084211. The claim also sets forth that Defendant owned the vehicle that was being operated by Linzy S. Patrick, an employee of New York State Park and Recreation Department, with permission and consent of Defendant. The allegation is also made that Claimant sustained "a serious injury" as defined by New York State Insurance Law section 5102 (d) and serious injury and economic loss greater than basic economic loss as to satisfy the exceptions of Insurance Law section 5104.
Defendant now makes several arguments for dismissal of the claim. Defendant first argues that both the claim and the notice of intention fail to satisfy the requirements of Court of Claims Act section 11 (b), specifically failing to describe the exact location along State Route 96A where the accident occurred and to allege any specific acts of negligence. Defendant also asserts that the both documents fail to detail any facts that would constitute a serious physical injury as required by CPLR 3016 (g), Insurance Law sections 5102 (d) and 5104 (a). Because the notice of intention is inadequate to meet the pleading requirements of Court of Claims Act section 11 (b), Defendant contends it is a nullity and, therefore, did not extend Claimant's time to file and serve a claim. As a result, the claim served and filed approximately 15 months after the accident is untimely pursuant to Court of Claims Act sections 10 (3) and 10 (3-b).
Court of Claims Act section 11 (b) requires that both the claim and notice of intention state the time when and place where such claim arose, the nature of the same, and the items of damage or injuries claimed to have been sustained. "The failure to satisfy any of the conditions is a jurisdictional defect." (Kolnacki v State of New York, 8 NY3d 277, 281 [2007]; Mosley v State of New York, 117 AD3d 1417 [4th Dept 2014]). The Court of Appeals has consistently held that "nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary." (Kolnacki, 8 NY3d at 281). These conditions are strictly construed and if the substantive pleading requirements are not met, dismissal for lack of subject matter jurisdiction is mandated (Signature Health Ctr., LLC v State of New York, 42 AD3d 678 [3d Dept 2007]). Where there are questions as to whether the allegations in the claim meet the requirements of Court of Claims Act section 11 (b), the guiding principle is whether the claim is sufficiently definite enough to "enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances." (Lepkowski v State of New York, 1 NY3d 201, 207 [2003] quoting Heisler v State of New York, 78 AD2d 767,767 [4th Dept 1980]). "Conclusory or general allegations of negligence that fail to adduce the manner in which the claimant was injured and how the State was negligent do not meet its requirements." (Heisler, 78 AD2d at 768; Dinerman v NYS Lottery, 69 AD3d 1145, 1146 [3d Dept 2010]). The State is not obligated to "ferret out or assemble information that Court of Claims Act section 11 (b) obligates the claimant to allege." (Lepkowski v State of New York, 1 NY3d 201, 208 [2003]). Even when Defendant has 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 (see e.g. Kolnacki v State of New York, 8 NY3d 277 [where Court of appeals dismissed claim for failure to state total sum claimed after trial and finding of liability]; Morra v State of New York, 107 AD3d 1115 [3d Dept 2013] [insufficient allegations in the claim require dismissal even where other documents in record set forth the underlying facts]).
In Kolnacki, Claimant failed to set forth the total amount claimed, which was another statutory requirement under Court of Claims Act section 11 (b) at that time, the statute has since been amended to obviate the need to allege the total sum claimed in this type of action (Court of Claims Act section 11 [b]; L. 2007, ch. 606, § 1, L. 2008, ch. 64 § 1).
Yet "absolute exactness" is not required (Heisler v State of New York, 78 AD2d at 767). The description of the location of the accident must be considered in light of the type of claim that is being asserted. For instance, an outside slip and fall will typically demand more detail as to where it occurred in order to permit Defendant to have the opportunity to find the location of the defect in an environment where conditions can rapidly change (see Triani v State of New York, 44 AD3d 1032 [2d Dept 2007]; Sheils v State of New York, 249 AD2d 459 [2d Dept 1998]). Where it is a motor vehicle accident, the location specified as a roadway in a identified locale, particularly where a State employee was involved, will typically be sufficient to allow Defendant to promptly investigate (see Deep v State of New York, 56 AD3d 1260 [4th Dept 2008] [notice of intention that indicated motor vehicle accident occurred on "Old River Road, in the Town of Marcy" was found to be sufficient]). Here, Claimant's description of the accident as occurring at an intersection on State Route 96A in the Town of Waterloo is sufficient.
Similarly, in Deep v State of New York, 56 AD3d at 1261, the Court found claimant's allegations of defendant's wrongdoing sufficient, where claimant described the cause of the accident as the "negligent, hazardous and dangerous operation" of the State vehicle (Deep v State of New York, UID No. 2007-042-512 [Ct Cl, Siegel, J., June 22, 2007] rev'd 56 AD3d 1260]). The Court held that claimant had provided "sufficient information from which the negligence of defendant reasonably could be inferred" (Deep v State of New York, 56 AD3d at 1261). Here, Claimant has provided even more information, asserting that the State employee failed to properly operate, control, maintain or manage her vehicle when she lost control, spun out and landed in the intersection colliding with Claimant. Claimant's allegations of the State's wrongdoing is sufficient in both the notice of intention and claim.
As for Defendant's argument that the claim fails to plead with sufficient detail that Claimant has suffered a serious injury under Insurance Law sections 5102 (d) and 5104 (a) in accordance with CPLR 3016 (g), Claimant has met the minimal requirements. Although it certainly would have been a better practice to set forth more detail, CPLR 3016 (g) only requires that the pleading state that a serious injury as defined in subsection (d) of section 5102 of the Insurance Law or economic loss as defined in subsection (a) of the same section be stated. Claimant has, in fact, complied with that requirement (see Matter of McGovern v Martin, 122 AD2d 333 [3d Dept 1986]). In Saavedra v State of New York, UID No. 2014-018-537 [Ct Cl, Fitzpatrick, J., Oct. 6, 2014], the claimant had failed to set forth any facts indicating claimant had suffered an injury as described in subsection d of section 5102 of the Insurance Law and had also failed to assert any statement that claimant had incurred "a serious injury as defined in subsection (d) of section 5102 of the Insurance Law" warranting dismissal of the claim (but cf., Matter of Edwards v State of New York, 119 Misc 2d 355 [Ct Cl 1983] [claimant has heavier burden with late claim application]).
As for Defendant's request that the caption be amended to reflect only the State of New York as Defendant, that portion of the motion is granted. Suit brought against the State includes causes of action against a department of the State and its employees.
This does not include separately incorporated entities such as the New York State Thruway Authority, the City University of New York, or the New York State Power Authority (see Court of Claims Act § 11 [a] [ii]).
Accordingly, Defendant's motion is GRANTED in part and DENIED in part as set forth above. The caption of the claim is hereby amended to reflect only the "State of New York" as Defendant.
Defendant shall have 30 days after the date this Decision and Order is filed with the Clerk of the Court to serve and file an answer to the claim.
May 28, 2015
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following 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 Michael P. Kenny, Esquire, in opposition, with exhibits attached thereto.