Opinion
# 2015-016-009 Claim No. 123220 Motion No. M-85821
03-09-2015
MARK ST. REMY v. THE STATE OF NEW YORK
Grey and Grey, LLP By: Sherman B. Kerner, Esq. Eric T. Schneiderman, Attorney General By: Lawrence E. Kozar, AAG
Synopsis
Case information
UID: | 2015-016-009 |
Claimant(s): | MARK ST. REMY |
Claimant short name: | ST. REMY |
Footnote (claimant name) : | |
Defendant(s): | THE STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 123220 |
Motion number(s): | M-85821 |
Cross-motion number(s): | |
Judge: | Alan C. Marin |
Claimant's attorney: | Grey and Grey, LLP By: Sherman B. Kerner, Esq. |
Defendant's attorney: | Eric T. Schneiderman, Attorney General By: Lawrence E. Kozar, AAG |
Third-party defendant's attorney: | |
Signature date: | March 9, 2015 |
City: | New York |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
Claimant Mark St. Remy moves to amend his claim, which alleges that he fell from a ladder while working on a construction project at the State University's Downstate Medical Center in Brooklyn on November 16, 2012. The proposed amended claim is more specific as to where and how Mr. St. Remy fell, apparently in response to the State of New York's Sixth and Seventh affirmative defenses, which claimant seeks to strike.
Defendant opposes the motion to amend the claim and strike the two affirmative defenses, and generally requests other just and proper relief, but does not explicitly seek dismissal of the claim.
The claim describes the location of his fall only with the street address - - 450 Clarkson Avenue - - in Brooklyn. As for how the accident occurred, the claim provides that he was working from a ladder "when the ladder fell out from under him causing him to sustain the injuries hereinafter . . ." [Cl affirm in support, exh B]. Attached to the motion was the Notice of Intention to File Claim which added some information, but also confused things somewhat on the building address. [Id., exh A]. The attachment added that St. Remy "was on the 8th floor in the /a mechanical room," but it also gave the address as "445 Lenox Road and /or 450 Clarkson Avenue."
In a personal injury suit, section 11 (b) of the Court of Claims requires that "[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. . . " The Court of Appeals has 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 . . ." Long v State of New York 7 NY3d 269, 276 (2006). Failure to so comply is a jurisdictional defect [ Kolnacki v State of New York, 8 NY3d 277 (2007) ].
Following the Court of Appeals dismissal of Ms. Kolnacki's suit for failure to state the total sum claimed, such provision was amended to eliminate the requirement in claims of personal injury, medical malpractice or wrongful death. [Chapter 606 of the Laws of 2007].
The Court of Claims defendant is not required to go beyond the claim for information that would indicate compliance with Section 11 (b). Thus, I am constrained from considering the proposed amended claim which makes clear that: St. Remy was working at 450 Clarkson Avenue; he was in the mechanical room on the "medical school side of the building;" he was using an A-frame ladder and "was working on a static pressure switch in the mechanical room when the cover of the switch fell and the claimant attempted to catch the switch cover and the ladder shifted due to the uneven floor causing claimant to fall." [Id., exh D].
Cobin v State of New York, 234 AD2d 498 (2d Dept 1996).
Accordingly, having reviewed the papers submitted by the parties, IT IS ORDERED that motion No. M-85821, to amend the claim and strike certain affirmative defenses, be denied. It should, however, be noted that section 10 (6) of the Act provides a vehicle for seeking permission to file a late claim, of which Mr. St. Remy may wish to avail himself.
The following were reviewed: claimant's Notice of Motion and Affirmation in Support (with 6 exhibits) and his Affirmation in Reply and Further Support of Claimant's Motion; and defendant's Affirmation in Opposition (with exhibits A through D).
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March 9, 2015
New York, New York
Alan C. Marin
Judge of the Court of Claims