Opinion
# 2014-045-029 Claim No. 118599 Motion No. M-85337
10-06-2014
KAREN SELLITTO and JOHN SELLITTO v. THE STATE OF NEW YORK
Mazzei and Blair By: Patricia Byrne Blair, Esq. Hon. Eric T. Schneiderman, Attorney General By: John L. Belford, IV, Assistant Attorney General
Synopsis
Defendant's motion to dismiss for failure to adequately describe location of the accident in the claim, trip and fall in a Stony Brook parking lot over debris.
Case information
| UID: | 2014-045-029 |
| Claimant(s): | KAREN SELLITTO and JOHN SELLITTO |
| Claimant short name: | SELLITTO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 118599 |
| Motion number(s): | M-85337 |
| Cross-motion number(s): | |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | Mazzei and Blair By: Patricia Byrne Blair, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, Attorney General By: John L. Belford, IV, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 6, 2014 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered by the Court on this motion: Defendant's Notice of Motion, Defendant's Affirmation in Support with annexed Exhibits A-C and Attorney's Affirmation in Opposition with annexed Exhibits 1-4.
Defendant, the State of New York, has brought this motion pursuant to CPLR 3211 (a) (2) and (a) (7) seeking an order dismissing the claim. Claimants, Karen Sellitto and John Sellitto, oppose the motion.
The facts of this matter have not materially changed since this Court's consideration of defendant's summary judgment motion which was decided in April of this year. The underlying action occurred on April 6, 2010 at approximately 12:45 p.m. when claimant, Karen Sellitto, tripped and fell after she stepped on a rock located in a parking lot at Stony Brook University Hospital. Ms. Sellitto described the parking lot as having sand and dirt scattered throughout the whole lot. She stated that the rocks were the size of quarters and silver dollars. Ms. Sellitto stated that after she fell a nurse told her that she had called someone to clean up the parking lot.
James P. Prudenti, Director of University Hospital Plant Operations at Stony Brook University Hospital, was deposed in this matter. He described the subject parking lot as being an open lot with 220 parking spaces in it.
Defendant moves this Court for dismissal of the claim due to claimants' failure to adequately describe the location of the subject accident in the claim as required by Court of Claims Act § 11 (b).
The claim in this matter describes the time when, place where and manner in which the claim arose as:
"On April 6, 2010 claimant, KAREN SELLITTO, a pedestrian, sustained a radial head fracture in her right arm when she was caused to step on loose stones and/or debris with her right foot causing her right ankle to bend and she fell down on her right hand and landed on the ground in a parking lot at Stony Brook University Hospital. Said incident resulted in claimant, Karen Sellitto, sustaining severe and permanent personal injuries. That the Stony Brook University Hospital was careless and negligent in not properly and adequately maintaining the aforementioned parking lot in a reasonably safe condition. That Stony Brook University Hospital was on notice of all the debris, including the sand and stones left in the parking lot after the winter causing a dangerous and defective condition to anyone traversing [t]he parking lot. Said dangerous and defective condition had been caused and/or created by respondent, their agents, servants and/or employees."
Defendant raised as its second affirmative defense contained in its answer that the claim failed "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, and therefore there is no proper claim over which the Court has jurisdiction."
Court of Claims Act § 11 (b) requires in pertinent part that "[t]he 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." These requirements are jurisdictional in nature and must be strictly complied with in order to properly initiate an action against defendant (Kolnacki v State of New York, 8 NY3d 277 [2007]). "The Court of Claims Act does not require [defendant] to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski v State of New York, 1 NY3d 201, 208 [2003]).
Given the size and number of parking lots at Stony Brook University Hospital, it is clear that the description of the location of the accident as recited in the claim was not sufficiently definite to satisfy the requirements set forth in Court of Claims Act § 11 (b). Thus, the claim is jurisdictionally defective and the Court is constrained to dismiss the claim (Fairchild Corp. v State of New York, 117 AD3d 780 [2d Dept 2014]; Hunter v State of New York, 72 AD3d 1030 [2d Dept 2010]; Prisco v State of New York, 62 AD3d 978 [2d Dept 2009], lv denied 13 NY3d 706 [2009]; Triani v State of New York, 44 AD3d 1032 [2d Dept 2007]).
Therefore, for the foregoing reasons, defendant's motion is granted and the claim is dismissed.
October 6, 2014
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims