Opinion
# 2015-049-006 Claim No. 121729 Motion No. M-85455 Cross-Motion No. CM-85586
01-21-2015
JOSEPHINE GENOVESE v. THE STATE OF NEW YORK and THE CITY UNIVERSITY OF NEW YORK
Calcagno & Associates, PLLC By: Pasquale Calcagno, Esq. Eric T. Schneiderman, New York State Attorney General By: Edward J. Curtis, Jr., Assistant Attorney General
Synopsis
Case information
| UID: | 2015-049-006 |
| Claimant(s): | JOSEPHINE GENOVESE |
| Claimant short name: | GENOVESE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK and THE CITY UNIVERSITY OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121729 |
| Motion number(s): | M-85455 |
| Cross-motion number(s): | CM-85586 |
| Judge: | DAVID A. WEINSTEIN |
| Claimant's attorney: | Calcagno & Associates, PLLC By: Pasquale Calcagno, Esq. |
| Defendant's attorney: | Eric T. Schneiderman, New York State Attorney General By: Edward J. Curtis, Jr., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 21, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
On March 31, 2011, claimant Josephine Genovese served a Notice of Intention ("NOI") to file a claim in this Court, naming as defendants the City University of New York ("CUNY") and the State of New York. The NOI alleged that on January 3, 2011 at 7:30 p.m., Genovese was walking in the "parking lot at 2800 Victory Blvd., College of Staten Island, in the parking lot by the gym . . . [when she] was caused to trip and/or slip and fall and be injured by reason of the negligence, recklessness and carelessness" of defendants (NOI ¶ 3). Specifically, claimant alleged that defendant allowed "said sidewalk parking lot" to be in a "dangerous and hazardous condition," and "fail[ed] to repair, clear of snow and ice, maintain salt or sand, maintain lighting repair, backfill or pave said condition" (id.). Later in the NOI, Genovese stated that she slipped and fell in the parking lot "while going to her car," because "[t]he parking lot had dim lighting and ice from melting snow which . . . caused claimant to incur and continue to incur expenses for medical attention and treatment" (id. ¶ 4).
These allegations were repeated verbatim in a claim Genovese filed in this Court on September 12, 2012. Defendants submitted a verified answer, stating as the sixth affirmative defense: "The Claim fails to comply with Court of Claims Act Section 11 by failing to include any particularization of the State's conduct, and the City University of New York's conduct, as it regards the accident." As to the seventh affirmative defense, the answer stated: "The claim fails to comply with Court of Claims Act Section 11 by failing to include an adequate description of the location of the incident alleged in the claim or any adequate description of the manner in which the incident occurred, and therefore, there is no proper claim over which the Court has jurisdiction." In addition, defendants set forth as their ninth affirmative defense that the State of New York is not a proper defendant to this action.
By stipulation, defendants subsequently submitted an Amended Verified Answer, which did not alter either of the three defenses at issue (see Aff. in Supp. of Cross Mot. Ex. E).
Claimant now moves to dismiss these three affirmative defenses. She contends that defendants have waived their right to raise a defense under section 11 because defendants failed to raise it within 60 days of serving the answer, a time frame she contends is set forth by CPLR 3211(e). Genovese further argues that the claim adequately particularized the cause and location of her injury. In support of this contention, she submits her deposition testimony, in which she explained that the lot was only one level, and it has three rows. Referring to these rows as "tiers," she identified the location of the fall as the "second tier" (Mot. Ex. A at 14).
Defendants submit the affirmation of an assistant attorney general in opposition to the motion, and cross move to dismiss the claim pursuant to its sixth and seventh affirmative defenses. In the alternative, defendants seek to dismiss the claim against the State, on the ground that claimant has not pled any basis for its liability (Aff. in Supp. of Cross Mot. ¶ 30). In regard to the cause of the accident, defendants note that while the NOI and claim refer to the presence of snow and ice, they also allege that defendants had "fail[ed] to repair" the location, and had not maintained "backfill" or "pave[d]" the spot (id. ¶ 13). Further, the Notice says that defendants had been put on notice at least 15 days before the accident of the dangerous condition, which is not consistent with a weather-related accident (id. ¶ 14).
Defendants note that Genovese served them with a photograph of the lot during the deposition, which is appended to its papers as exhibit G. That photograph shows an outdoor lot with space for about three rows of cars, and snow piled on its borders.
In a reply affirmation, claimant makes clear regarding the cause of the accident that her allegation is that she "slipped on snow and ice in the parking lot" (Reply Aff. ¶ 4).
Discussion
I. Timeliness
As an initial matter, claimant asserts that defendants have waived their 11(b) defense, by failing to raise it within 60 days of serving the answer. CPLR 3211(e) provides in relevant part:
"A motion based upon a ground specified in paragraph two, seven or ten of subdivision (a) may be made at any subsequent time or in a later pleading, if one is permitted; an objection that the summons and complaint, summons with notice, or notice of petition and petition was not properly served is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within sixty days after serving the pleading, unless the court extends the time upon the ground of undue hardship."
Even assuming that this provision applies to the Court of Claims ( but see Diaz v State of New York, 174 Misc 2d 63 [Ct Cl 1997] [60-day provision in CPLR 3211[e] "was not intended to apply to claims in the Court of Claims"]), on its face it concerns only the defense of improper service, and thus has no relevance here. Moreover, failure to particularize a claim under section 11(b) constitutes a defect in the Court's subject matter jurisdiction. Such a defect generally cannot be waived (see Davis v State of New York, 64 AD3d 1197 [4th Dept 2009]), and may be raised at any time during the pendency of the action (Caci v State of New York, 107 AD3d 1121, 1122 [3d Dept 2013]; see also Wilson v State of New York, 35 Misc 3d 227, 233 [Ct Cl 2011] [11(b) defense may be raised at "any time"]). Thus, the cross motion does not run afoul of any time limitation. I proceed, then, to the merits of the defenses.
II. Section 11(b)
Section 11(b) of the Court of Claims Act provides in relevant part: "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 purpose of this requirement is "to enable the State . . . 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]). A claim need not be pled with "absolute exactness" (see Santos v State of New York, 291 AD2d 851, 851 [4th Dept 2002]; Wharton v City Univ. of N.Y., 287 AD2d 559, 559 [2d Dept 2001]). Conclusory or general allegations of negligence do not suffice, however (see Grumet v State of New York, 256 AD2d 441, 442 [2d Dept 1998]).
Defendants challenge claimant's compliance with section 11(b) on two grounds. First, they argue that the notice of intention and claim fail to identify the location of the accident with sufficient specificity, and second, they assert that the claim fails to specify the precise negligence on defendants' part that led to Genovese's injury.
As to the location, defendants maintain that the claim and notice of intention are defective because "[c]laimant does not describe where in the parking lot she fell" (Aff. in Supp. of Cross Mot. ¶ 29). A review of the photograph produced by claimant, however, indicates that this is a relatively small lot. I do not see how any greater specificity in regard to location would have aided the defendants in investigating the conditions at the lot on the day in question, and the measures used by defendants to alleviate them.
The claimant does not allege a physical defect in the lot, but rather the lighting and presence of ice and snow. Since the NOI was not - and was not required to be - served while any ice and snow was still on the ground, it is hard to see how identifying the exact spot in the lot where Genovese fell would have aided the State's investigation.
The matter before me is quite analogous to that considered in Acee v State of New York (81 AD3d 1410, 1411 [4th Dept 2011]). In that case, the Appellate Division reinstated a slip and fall claim that had been dismissed on 11(b) grounds. The claim had stated that the claimant "fell at Groveland Correctional Facility in its parking lot by reason of broken pavement" (id.). The Court found this allegation sufficient, even though the fall had actually occurred on an adjoining road.
I see no basis to distinguish the claim here. Although the Acee pleadings had identified a general defect ("broken pavement"), it gave no specifics as to where that defect was, and this contention was no more particularized than Genovese's allegation here that she slipped on snow and ice. Thus, I find the location of the fall described with adequate specificity to meet the 11(b) requirements (see Mosley v State of New York, 117 AD3d 1417 [4th Dept 2014] [statement that accident occurred when claimant "slipped on ice and snow on the walk way" as she "approached the entry to [the] correctional facility" complied with 11(b)]).
At her deposition she provided even more detail, pinpointing the row in which it occurred.
As to defendants' argument that the claim did not specifically disclose the nature of the defect, I find that, too, to be without merit. Although the claim was not a model of clarity in this regard, it twice states that the fall was caused by ice, and the lack of sufficient lighting. The fact that there are references to failure to make certain repairs that do entirely fit with this narrative does not place the disclosure outside what is acceptable under section 11(b) (see id. at 1417-1418 [mistaken reference to correctional facility as "county" jail did not violate section 11(b), when facts set forth elsewhere made clear the location at issue]). So long as the "reasonable inference" to be drawn from the claim is that it alleges a fall on icy conditions and a lack of adequate lighting, it is sufficient for section 11(b) purposes (see Ferrugia v State of New York, 237 AD2d 858, 859 [3d Dept 1997] [claim meets section 11(b) when manner of defendant's negligence can be "reasonably inferred" from allegations in claim]; Rodriguez v State of New York, 8 AD3d 647, 648 [3d Dept 2004] [claim for medical malpractice met section 11(b) requirements when the "reasonable inference to be drawn from the language was that the decedent's wrongful death was alleged to be the result of the negligent medical treatment provided by the State"]). I find that to be the case here.
Finally, while defendants contend that the ambiguities in the claim impeded their ability to investigate (see Aff. in Supp. of Cross Mot. ¶ 26), it does so only in conclusory terms, and fails to show prejudice with any specificity (see Ilacqua v State of New York, UID No. 2009-038-518 [Ct Cl, DeBow, J., Feb. 23, 2009] ["it is incumbent upon defendant to demonstrate that its ability to investigate was impaired by the alleged insufficiency of the claim"] [citation omitted]; Tamez v New York State Thruway Authority and State of New York, UID No. 2007-015-213 [Ct Cl, Collins, J., July 10, 2007] [same]).
In light of all the foregoing, defendants have not shown that the claim has failed to comply with section 11(b), and must be dismissed on that ground.
III. Claim against State of New York
Defendants cross move for dismissal of the claim as to the State of New York, since the fall at issue is alleged to have taken place on the grounds of a CUNY college, and that there is no allegation of misconduct by the State of New York (Aff. in Supp. of Cross Mot. ¶ 30). Claimant's only response to this is that CUNY is a "State of New York agency or wholly, owned, managed, operated and/or controlled by the State of New York" (Aff. in Opp. of Cross Mot. ¶ 8). Therefore, claimant maintains, any action against CUNY "also applies" to New York State (id.).
The upshot of claimant's argument is that any claim against CUNY will automatically be grounds for a proper claim against the State of New York as well. That is not an accurate statement of the law. CUNY is "not formally part of the State," and whether it is deemed an arm of the State in a particular instance depends on the facts and circumstances (see Matter of Apollon v Giuliani, 246 AD2d 130, 135-136 [1st Dept 1998]). In regard to an action in the Court of Claims, CUNY must be served separately, and a claim against the State is not pled merely because allegations are made against the University (see Ibekweh v State of New York, 157 Misc 2d 710 [Ct Cl 1993], affd 259 AD2d 397 [1st Dept 1999] ["CUNY. . . is an entity independent of the State (Education Law § 6224 [4]) and must therefore be served independently of it"]; Eng v State of New York, 14 Misc 3d 1203[A] [Ct Cl 2006] [allowing action to proceed against CUNY, but dismissing against State of New York since "the claim does not state a cause of action against the State"]).
Claimant's contention that a claim against CUNY is the same as a claim against the State would upend these principles, and is without support in the caselaw. As a result, and since no facts have been alleged against the State of New York, I grant the defendants' motion to dismiss claimant's causes of action against the State.
Accordingly, claimant's motion to dismiss defendant's affirmative defenses (M-85455) is granted as to the sixth and seventh affirmative defenses, and denied as to defendants' ninth affirmative defense. Defendants' cross motion to dismiss (CM-85586) is granted as to the State of New York, and otherwise denied as moot.
January 21, 2015
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion, Affirmation and annexed exhibit.
2. Defendants' Notice of Cross Motion, Affirmation in Support and annexed exhibits.
3. Claimant's Affirmation in Opposition to Defendants' Cross Motion and Reply.