Opinion
# 2014-029-010 Claim No. 122630 Motion No. M-84278
02-04-2014
GREGORY ASBERY v. THE STATE OF NEW YORK
Claimant's attorney: GREGORY ASBERY, pro se Defendant's attorney: ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By Terrance K. DeRosa, Assistant Attorney General
Synopsis
Court grants claimant's motion to amend claim to reflect correct accrual date of April 18, 2011 rather than April 10, 2010. The underlying incident was a major fire at the correctional facility involving the local fire department and press reports questioning the timeliness of the response. The typographical error, in this case, had no jurisdictional implication because it did not serve to undermine defendant's ability to investigate the underlying incident.
Case information
UID: 2014-029-010 Claimant(s): GREGORY ASBERY Claimant short name: ASBERY Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 122630 Motion number(s): M-84278 Cross-motion number(s): Judge: STEPHEN J. MIGNANO Claimant's attorney: GREGORY ASBERY, pro se ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL Defendant's attorney: By Terrance K. DeRosa, Assistant Attorney General Third-party defendant's attorney: Signature date: February 4, 2014 City: White Plains Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant moves for permission to amend his claim to correct a typographical error. He states in support of the motion that he mistakenly stated in the claim that the incident in question occurred on April 18, 2010 when in fact it occurred on April 18, 2011. Defendant opposes the motion.
In the filed claim, claimant alleges that at about 1:20 a.m. on April 18, 2010 he was awakened in his cell at Sing Sing Correctional Facility by the smell of smoke and the sound of other inmates screaming. The claim seeks damages arising from the failure to evacuate the inmates, specifically claimant, for four hours; i.e., coughing, headaches, dizziness and claustrophobia.
In the filed claim, claimant also alleged that he served a notice of intention to file a claim on defendant within 90 days of the claim's accrual. In its answer, defendant admitted that claimant's notice of intention was served on the Attorney General on July 18, 2011.
In support of his motion granting leave to amend the claim to correct the mistaken reference in the claim to "2010" to correctly read "2011," claimant attached an Ossining Fire Department Incident Report indicating that three trucks with 23 firefighters responded to a fire in a junction box at Sing Sing resulting in heavy smoke in the basement and light smoke in the block area at 3:17 a.m on April 18, 2011. He also attached an article from the Village Voice dated May 5, 2011 referring to the fire, which the article states forced the relocation of 700 inmates, and the alleged failure to timely and properly evacuate the inmates, charges made in the article by an attorney who allegedly received letters from 60 inmates complaining about the incident.
Opposing the motion, defendant acknowledges the principle that leave to amend pleadings is freely granted in the absence of prejudice (which is not alleged), but notes that a claim in the Court of Claims may not be amended in order to cure a "jurisdictional defect." Defendant then states, also correctly, that Court of Claims Act section 11(b) requires that a claim contain, among other requirements, the "time when" it arose and, citing Lepkowski v State of New York (1 NY3d 201), maintains, also correctly, that the requirements of section 11(b) implicate the subject matter jurisdiction of the court. Defendant then concludes, by inference and without specifically so stating, that the above principles prevent, in all cases, amendment of a claim with respect to the matters that the statute requires it contain - (1) the time when and (2) place where it accrued, (3) the nature of the claim, (4) the items of damage and, in some cases, (5) the amount demanded - or at least as pertains to this case, that a claim can never be corrected to correct a mistaken accrual date, regardless of circumstances. No authority is presented in support of such a rule, and examination of the relevant authorities does not support such a conclusion.
In Lepkowski, the Court held that the failure of a claim to set forth any of the five specific items referenced in the statute resulted in a failure to properly invoke this court's subject matter jurisdiction, and further held, with respect to the substance of a claim's contents in each case, that it must be sufficiently specific " 'to enable the State . . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances,' which is the guiding principle informing section 11 (b)" (Lepkowski v State of New York, 1 NY 3d 201, 207) citing Heisler v State of New York, 78 AD2d 767).
In Kolnacki v State of New York (8 NY3d 277), the court rejected the contention that the failure of a claim to address one of the five statutory factors - the amount demanded - was not of jurisdictional import. The Court remained steadfast: "[t]he failure to satisfy any of the conditions is a jurisdictional defect" and in response to the contention that the amount of damages is rarely accurately known in personal injury claims when the claim is filed, held: "[a] claim may always be amended at a later time, if necessary" (8 NY3d 277, 281), thus establishing the principle that a claim's failure to address one of the five statutory requirements is a different matter from whether the claim may be amended with respect to one of those five requirements.
Cousins v State of New York (UID No. 2007-014-520, Ct Cl, Nadel, J. [2007]): "Thus, while the absence of any one of the required components set forth in section 11 (b), being of jurisdictional import, is not correctable by amendment of the claim to add it, the sufficiency with which any one of the components has been stated is amenable to amendment, as long as the claim itself is sufficiently 'definite "to enable the State . . . to investigate the claim promptly and to ascertain its liability under the circumstances," which is the guiding principle informing' section 11 (b) (Lepkowski, supra at 207, quoting Heisler v State of New York, 78 AD2d 767)."
There being no rule that bars amendment, the answer to whether a particular proposed amendment offends the jurisdictional scheme set forth in the Court of Claims Act and in Lepkowski and similar cases may be found in that Court's invocation of the "guiding principle" - that the purpose of a claim is to provide the State with prompt notice (90 days in most cases) of the claimant's allegations with sufficient specificity to allow for a prompt investigation so that the State may ascertain its potential liability. Application of that principle, combined with the principle that amendment of pleadings is to be freely granted in the absence of prejudice, will provide the answer to whether a particular amendment of a claim is barred as an attempt to cure a jurisdictional defect or is a mere irregularity, a typographical error appropriately addressed via an amended claim.
While in many cases, probably most cases, a mistake as to the date of accrual or one of the other statutory requirements will necessarily require the conclusion that the claim failed to provide adequate notice, such is not the case here. To begin with, the document that claimant served within 90 days of accrual was his notice of intention, a document that is not filed with the court, only served on defendant who, although opposing the motion to amend the claim and necessarily contending that the existing pleadings did not provide adequate notice, did not provide a copy. The court presumes from that failure that the notice of intention, which was the jurisdiction-conferring document in this case, had the correct date. But regardless of the notice of intention, claimant has established that the incident for which he seeks damages was a major event at the correctional facility and has established that the allegations that form the basis of his claim were the subject of public inquiry immediately after the event. There was no mystery as to the date of this fire, to the contrary the date contained in the claim was from the beginning an obvious and innocuous typographical error with no jurisdictional import. Defendant does not even attempt to contend that there was any investigatory difficulty occasioned by the erroneous digit, that the events that form the basis of the claim were not fully and completely investigated by defendant regardless of the fact that claimant made a typographical error in a document served two years after the event. That being the case, there is no bar to the proposed amendment.
e.g., Liberty Mutual Insurance Co. v State of New York, UID No. 2010-016-006, Ct Cl, Marin, J. [2010].
"In permitting an amendment we must make a distinction between permission to amend a claim to remedy a pleading deficiency and an amendment to cure a jurisdictional defect. This claim falls into the former category since claimants obtained jurisdiction with their notice of intention. In a situation where a claimant has failed to obtain jurisdiction, an amendment of a claim cannot be a vehicle to circumvent the jurisdictional requirements of the Court of Claims Act (Grande v State of New York, 160 Misc 2d 383; Sudakin v Long Is. R. R. Co., 32 AD2d 560)." Cannon v State of New York, 163 Misc 2d 623.
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Claimant also requests to increase his demand for relief from $25,000 to $50,000, which is of no moment since the statute no longer requires that a personal injury claim demand a particular amount of damages, after the legislative response to the above-cited Kolnacki decision, a request to which defendant did not respond.
Accordingly, the motion is granted. The two references on page one of the filed claim to "2010" are deemed amended to read "2011" and the reference on page 2 to "25,000" is deemed amended to read "$50,000." Defendant may serve and file an amended answer, if it wishes, within 40 days of the filing date hereof. If no amended answer is filed, the original answer will stand.
February 4, 2014
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims
Papers considered:
Notice of Motion, Affidavit and Exhibits
Affirmation in Opposition
Claim, Answer