Opinion
# 2014-044-525 Claim No. 122320 Motion No. M-84865
06-05-2014
RUSSELL SOMER v. STATE OF NEW YORK
LANGONE & ASSOCIATES, PLLC BY: Richard M. Langone, Esq., of counsel HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Carol A. Cocchiola, Assistant Attorney General
Synopsis
Failure to set forth location of accident with sufficient specificity results in dismissal for lack of subject-matter jurisdiction; defect cannot be cured through Bill of Particulars.
Case information
| UID: | 2014-044-525 |
| Claimant(s): | RUSSELL SOMER |
| Claimant short name: | SOMER |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | The Court has sua sponte amended the caption to reflect the State of New York as the sole proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122320 |
| Motion number(s): | M-84865 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | LANGONE & ASSOCIATES, PLLC BY: Richard M. Langone, Esq., of counsel |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Carol A. Cocchiola, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 5, 2014 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant filed this claim to recover for damages allegedly received when he slipped and fell on an icy sidewalk while on the State University of New York at Oneonta (SUNY Oneonta) campus. Defendant State of New York (defendant) answered and asserted several affirmative defenses. Defendant now moves to dismiss the claim. Claimant opposes the motion. Defendant replies.
Defendant contends that both the notice of intention to file a claim and the claim itself fail to set forth the location where the claim accrued with sufficient specificity to satisfy the pleading requirements of Court of Claims Act § 11 (b). Conversely, claimant argues that the claim contains sufficient facts to provide notice of where the injury occurred and that such location was further amplified in the bill of particulars.
Defendant initially contended that the claim should be dismissed because the Notice of Intention was not timely served, but has since withdrawn that argument.
Court of Claims Act § 11 (b) requires that a claim 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." Pleading with absolute exactness is not required, and the guiding principle underlying Court of Claims Act § 11 (b) is whether the State is able " 'to investigate the claim[s] 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]). "However, defendant is not required 'to ferret out or assemble information that section 11(b) obligates the claimant to allege' " (Morra v State of New York, 107 AD3d 1115, 1116 [3d Dept 2013], quoting Lepkowski v. State of New York, 1 NY3d at 208 [2003]).
In this action, claimant has served a notice of intention which states that while he was walking on the campus of SUNY Oneonta on February 26, 2012, he "slipped and fell on a patch of unseen ice on a [sidewalk] that had otherwise been cleared by state workers." Claimant additionally states in the claim that the fall occurred "at South Dorm Drive Building Wilber," while he was "a pedestrian who was seriously injured [when] walking on the SUNY Oneonta campus sidewalk."
Affirmation of Assistant Attorney General (AAG) Carol A. Cocchiola, dated Mar. 18, 2014, in Support of Motion, Exhibit A.
Verified Claim, ¶ 3.
Id., ¶ 8.
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Claimant has set forth the location of his fall only as a sidewalk located on South Dorm Drive at or in the vicinity of Building Wilber (presumably Wilber Hall). The Court finds that this general description of the place of the fall to be insufficient for defendant to conduct an investigation and ascertain its potential liability in this matter (Lepkowski, 1 NY3d at 207; see also Riefler v State of New York, 228 AD2d 1000 [3d Dept 1996]; Matthews v State of New York, UID No. 2007-028-541 [Ct Cl, Sise, P.J., Mar. 30, 2007] [where the location of the incident was described only as the sidewalk outside of Building 8A]; Acevedo v State of New York, UID No. 2006-016-073 [Ct Cl, Marin, J., Nov. 8, 2006] [where the location described as "the track surrounding the Soccer Field in Riverbank State Park" was insufficient]).
Moreover, and contrary to claimant's contention, this jurisdictional defect cannot be cured by information later supplied in the Bill of Particulars (see Yanus v State of New York, 35 Misc 3d 361 [Ct Cl 2011]). As set forth previously in this Decision and Order, a "defendant is not required to go beyond the claim in order to investigate an occurrence or ascertain information that should have been provided pursuant to Court of Claims Act § 11" (Lepkowski v State of New York, 302 AD2d 765, 766 [3d Dept 2003], affd 1 NY3d 201 [2003]).
Claimant's contention that defendant should be estopped from moving to dismiss based upon the doctrine of laches is also without merit. Initially, as defendant correctly notes, this Court directed that dispositive motions be made in this matter no later than 60 days after filing the note of issue and certificate of readiness. Because the note of issue has not yet been filed, this motion is clearly timely. Moreover, claimant's failure to comply with the substantive pleading requirements of Court of Claims Act § 11 (b) is a defect resulting in the lack of subject matter jurisdiction (Signature Health Ctr., LLC v State of New York, 42 AD3d 678, 679 [3d Dept 2007]; see Kolnacki v State of New York, 8 NY3d 277, 280 [2007]), which is not waivable and may be raised at any time during the litigation, even by the Court sua sponte (Czynski v State of New York, 53 AD3d 881 [3d Dept 2008], lv denied 11 NY3d 715 [2009]). Accordingly, the Court finds that defendant is not estopped from making this motion, notwithstanding that two years have elapsed and the parties have apparently completed discovery.
In conclusion, the claim fails to meet the pleading requirements of Court of Claims Act § 11 (b), and thus the Court lacks subject matter jurisdiction over this matter (see Kolnacki, 8 NY3d at 280; Lepkowski, 1 NY3d at 209; Signature Health, 42 AD3d at 679).
Accordingly, defendant's motion is granted and Claim No. 122320 is dismissed in its entirety.
June 5, 2014
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims
The following papers were read on defendant's motion:
1) Notice of Motion filed on March 21, 2014; Affirmation of Carol A. Cocchiola, AAG, dated March 18, 2014, and attached exhibits.
2) Affirmation in Opposition of Richard M. Langone, Esq., dated March 21, 2014, and attached exhibit.
3) Reply Affirmation of Carol A. Cocchiola, AAG, dated April 21, 2014.
Filed papers: Claim filed on January 29, 2013; Verified Answer filed on March 8, 2013.