Opinion
Claim No. 135169
02-14-2022
Nicholas URSINI, Claimant, v. The STATE of New York, Defendant.
For Claimant: THE ROSATO FIRM, P.C., By: Paul A. Marber, Esq. For Defendant: LETITIA JAMES, Attorney General for the State of New York, By: Rachel Zaffrann, Deputy Assistant Attorney General
For Claimant: THE ROSATO FIRM, P.C., By: Paul A. Marber, Esq.
For Defendant: LETITIA JAMES, Attorney General for the State of New York, By: Rachel Zaffrann, Deputy Assistant Attorney General
Walter Rivera, J.
The following papers numbered 1-3 were read and considered by the Court on claimant's motion to dismiss affirmative defenses or to treat the notice of intention as a claim, to strike the State's answer, to impose additional sanctions and/or to compel compliance with claimant's demand for a bill of particulars and combined demands:
Notice of Motion, Attorney's Supporting Affirmation, and Exhibits 1
State's Attorney's Affirmation in Opposition, and Exhibits 2
Attorney's Affirmation in Reply, and Exhibit 3
The claim for negligence, filed on August 6, 2020, alleges that on May 13, 2019, Nicholas Ursini fell and injured himself while walking on the premises of the State University of New York, Purchase College (SUNY Purchase). The State filed an answer with twelve affirmative defenses on November 16, 2020. Claimant moves to dismiss the first, ninth, eleventh and twelfth affirmative defenses pursuant to CPLR 3211 (b) or, alternatively, to treat claimant's notice of intention as a claim pursuant to Court of Claims Act § 10 (8) (a). Claimant also moves to strike the State's answer pursuant to CPLR 3126, to impose additional sanctions, and/or to compel compliance with claimant's demands for a bill of particulars and combined demands for information and documents pursuant to CPLR 3124. The State opposes the motion.
By stipulation dated February 14, 2022, the parties’ attorneys have resolved their dispute insofar as it concerns the ninth affirmative defense, and claimant's request for an order compelling compliance with claimant's demand for a bill of particulars (Ex. 7).
The stipulation provides, in relevant part, that the State is withdrawing the seventh and ninth affirmative defenses, which plead, respectively, lack of notice and a bar of the claim by operation of the Workers’ Compensation Law.
Motion to Dismiss Affirmative Defenses
In a motion to dismiss affirmative defenses pursuant to CPLR 3211 (b), the claimant bears the burden of demonstrating that the affirmative defenses are without merit as a matter of law (see 534 E. 11th St. Hous. Dev. Fund Corp. v Hendrick , 90 AD3d 541, 541-542 [1st Dept 2011] ; Vita v New York Waste Servs., LLC , 34 AD3d 559, 559 [2d Dept 2006] ). In deciding a motion to dismiss an affirmative defense, the defendant "is entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed" ( Warwick v Cruz , 270 AD2d 255, 255 [2d Dept. 2000] ). "If there is any doubt as to the availability of a defense, it should not be dismissed" (id. ).
The first and twelfth affirmative defenses (Ex. 6 [answer]) plead lack of jurisdiction due to the failure of the claim (Ex. 5) to meet the particularity requirements of Court of Claims Act § 11. The eleventh affirmative defense pleads lack of jurisdiction due to the failure of the notice of intention (Ex. 3) to meet those same particularity requirements.
These affirmative defenses are based on the jurisdictional requirements of Court of Claims § 11 (b). Section 11 (b) requires that a notice of intention or a claim "shall state the time when and place where such claim arose [and] the nature of same." A defendant "is not required to go beyond the claim or notice of intention in order to be able to investigate an occurrence or to obtain information necessary for such an investigation to occur" (see Lepkowski v State of New York , 1 NY3d 201, 208 ). While the statute does not require "absolute exactness," it does require a statement made "with sufficient definiteness to enable the State to investigate the claim promptly and to ascertain its liability under the circumstances" ( id. at 207, quoting Heisler v State of New York , 78 AD2d 767 [4th Dept 1980] ; see Triani v State of New York , 44 AD3d 1032, 1032 [2d Dept 2007] ). The statute further states that a notice of intention to file a claim "shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated." It is well established that the failure to satisfy the substantive pleading requirements of Court of Claims Act § 11 (b) is a jurisdictional defect that requires dismissal of the claim (see Kolnacki v State of New York , 8 NY3d 277, 280-281 [2007] ; Lepkowski at 206-207; Czynski v State of New York , 53 AD3d 881, 882-883 [3d Dept 2008], lv denied 11 NY3d 715 [2009] ). Sufficiency under Section 11 (b) is subject to strict scrutiny (see Lepkowski at 207).
The Court will first address the sufficiency of the notice of intention. The eleventh affirmative defense alleges that the notice of intention did not comply with Court of Claims Act § 11 (b) when it was served and, thus, did not extend the time for filing the claim pursuant to Court of Claims Act § 10 (3). Section 10 (3) requires that a claim for personal injuries due to negligence by the State be commenced within 90 days after the claim accrues, or within two years of accrual, if claimant has served a notice of intention within the 90-day time period. Where claimant has failed to meet the statutory prerequisites, the claim must be dismissed for lack of jurisdiction (see Kolnacki at 281; Welch v State of New York , 286 AD2d 496, 497-498 [2d Dept 2001] ). It is undisputed that claimant served the notice of intention within the 90-day period. However, the claim was filed on August 6, 2020, more than a year after the accrual date. Therefore, even if the claim is sufficient under Section 11 (b), it must be dismissed for lack of jurisdiction due to untimeliness if the notice of intention is found to be deficient.
The notice of intention sets forth the following information about where and when the accident occurred:
"On or about May 13, 2019, at approximately 3:40 p.m., claimant NICHOLAS URSINI was walking upon a grassy common pathway emanating from between buildings designated dormitory AV-2 and AV-3, en route to Parking Lot East-5, at the SUNY/Purchase College Alumni Village residences in Purchase, New York, adjacent to East Loop, and was injured when he was caused to trip and fall due to a defective, dangerous and hazardous condition of a portion of the grassy common pathway which was uneven, unlevel, disrupted, depressed, raised, concave, worn and receding. The defective, dangerous and hazardous condition was located approximately 99 feet 4 inches south of the north end of the building designated dormitory AV-3 and approximately 241 feet 8 inches north of the south end of the building designated dormitory AV-1, approximately 15 feet 9 inches east of a drain covering thereat and approximately 29 feet 11 inches west of the westerly curb ... located on the westerly curb line of Parking Lot East-5. [...] Attached hereto are color copies of four (4) photographs depicting the subject accident location and defective condition."
The notice of intention provides the "specificity in the description of the location of the incident" that is required where, as here, the alleged defect is in an open setting ( Wilson v State of New York , 35 Misc 3d 227, 231 [Ct Cl 2011] [finding specificity of "heightened significance" where defect is in open setting]). Indeed, the notice of intention provides a detailed description of the grassy area on the SUNY/Purchase campus that includes measurements in feet and inches of the distance from specified buildings, a drain, and a curb to the alleged defect in the ground. The four photographs attached to the notice of intention also show the alleged defect, a depression in the grassy area with what appears to be a grate at the bottom of the depression.
While claimant invites the Court to consider the response of campus police to the scene of the fall as evidence of its awareness of the accident's precise location, the Court need only note that "defendant is not required to go beyond the claim [or notice of intention] in order to investigate an occurrence or ascertain information that should have been provided pursuant to Court of Claims Act § 11" (Lepkowski at 208). As such, the Court will not take the response of the campus police into consideration.
In its opposition, the State does not argue that the measurements set forth in the notice of intention indicate a spot other than the one shown in the photographs. Rather, the State argues that the description is contradictory because the photographs show a grassy hill instead of a "grassy common pathway" and the description of the defect refers to it being both "depressed" and "raised" (Ex. 3). The State's attorney's characterization of the grassy area as a hill is not inconsistent with the description of it as a common pathway, and regardless of the characterization, the area was sufficiently identified so as to allow the State to investigate. In that regard, irrespective of the characterization of the alleged defect, the Court finds that the description of the location satisfies the requirements of Court of Claims § 11 (b). Service of the notice of intention triggered the two-year extension of time to file the claim. As such, the eleventh affirmative defense is without merit as a matter of law.
The first and twelfth affirmative defenses challenge the sufficiency of the claim under Court of Claims § 11 (b). As a threshold matter, the copy of the claim attached as Exhibit 5 to the motion differs from the copy of the claim that was filed with the Court. The claim attached as Exhibit B to the State's opposition is the same as the claim filed with the Court. Claimant's submission of the wrong claim with the motion does not warrant denial of the motion to dismiss the first and twelfth affirmative defenses, as the State provided the Court with a copy of the claim that was filed with the Court and has not been prejudiced by claimant's oversight.
The Court takes judicial notice of the claim that was filed and is maintained as part of the court file.
The first affirmative defense alleges that the claim fails to specify the State's conduct and the manner in which the claim arose, in violation of Section 11 (b). "[C]onclusory or general allegations of negligence that fail to [state] the manner in which the claimant was injured and how the State was negligent do not meet [the statute's] requirements" ( Kimball Brooklands Corp. v State of New York , 180 AD3d 1031, 1032 [2d Dept 2020], quoting Wharton v City Univ. of NY , 287 AD2d 559, 559 [2d Dept 2001] [internal citations omitted]).
The claim (at ¶¶ 17-25) alleges that the State owned the Purchase College premises, had a duty to maintain the premises in a reasonably safe condition, the State breached that duty by allowing "dangerous, defective, hazardous, dangerous, unsafe obstruction, tripping and slipping conditions" to exist at the premises, and the State's breach caused claimant to be injured on May 13, 2019. There are no facts about the accident itself, such as whether claimant fell and what caused him to fall. The exact condition that claimant asserts was dangerous and how it caused him to be injured is information the State needs in order to investigate (see Kimball at 1032 [claim for flood damage was found deficient where claim did not specify what the State negligently designed, constructed or maintained]); Grumet v State of New York , 256 AD2d 441 [2d Dept 1998] [claim was deficient where it failed to allege what caused the claimant to slip and fall]).
The twelfth affirmative defense alleges that the claim fails to specify the location of the incident. The claim describes the location as "a grassy common pathway emanating from between the buildings designated dormitories AV-2 and AV-3, going towards Parking Lot East-5, and adjacent appurtenances, at the SUNY/Purchase College Alumni Village residences, adjacent to East Loop, in Purchase, New York" (Ex. B at ¶ 8). As described, the location is an open space. Unlike the notice of intention, the claim does not contain detailed measurements or attach photographs showing the alleged defect and its location in the open space. The details in the claim are insufficient to permit an investigation by the State, and for the State to assess its potential liability.
If the inquiry were to end there, the instant motion would be denied as to the first and twelfth affirmative defenses. However, the question raised by these affirmative defenses is whether the Court lacks jurisdiction because of deficiencies in the claim. Claimant argues correctly that where a timely served notice of intention, but not the claim, complies with Court of Claims Act § 11 (b), the notice of intention gives the Court jurisdiction (see Gonzalez v State of New York , 25 Misc 3d 1216[A] [Ct Cl 2006], affd on other grounds 60 AD3d 1193 [3d Dept 2009], lv denied 13 NY3d 712 [2009] [denying cross-motion to dismiss claim with deficient description of location under Court of Claims Act § 11[b], where description in notice of intention complied with the statute]; citing Peralta v State of New York , UID No. 2004-030-902 [Ct Cl, Scuccimarra, J., Feb. 10, 2004] [finding that claim's omission of complete description of location was "a minor, non-jurisdictional, pleading error" that could be remedied by amendment where notice of intention contained enough information to invoke the court's jurisdiction]; see Kanof v State of New York , UID No. 2017-029-081 [Ct Cl, Mignano, J., Nov. 21, 2017]).
As Acting Presiding Judge Sise explained in Gonzalez,
"The purpose of the substantive content requirements of section 11 (b) has been met when the State is given, in a timely fashion, sufficient information to allow it to conduct an investigation of the underlying events. If the claim that is filed and served sometime later does not contain all of the required information, that defect does not have jurisdictional implications because it has no impact on the State's ability to investigate or its knowledge of the allegations against it." ( Gonzalez , 25 Misc 3d 1216 [A]).
The Court has already determined that the notice of intention was served in a timely manner and that it contains sufficient details about the location of the incident to have allowed the State to conduct an investigation. Notably, the notice of intention further alleges that the claim is to recover damages for a quadriceps tendon tear in claimant's right leg and for other personal injuries claimant sustained on May 13, 2019, at approximately 3:40 p.m., when he tripped and fell on the SUNY/Purchase campus. The notice of intention specifies that claimant tripped on a dangerously uneven portion of a grassy common pathway, describes exactly where the spot was located, and attaches "color copies of four (4) photographs depicting the subject accident location and defective condition" (Ex. 3, ¶ 3). The notice of intention also alleges that the defective condition resulted from the State's negligence in that:
"THE STATE OF NEW YORK AND THE STATE UNIVERSITY OF NEW YORK (PURCHASE COLLEGE), their agents, servants, employees, agencies and departments and/or contractors, were negligent in their ownership, operation, supervision, management, maintenance, construction, control and repair of the aforementioned grassy common pathway, as identified above. Furthermore, THE STATE OF NEW YORK and THE STATE UNIVERSITY OF NEW YORK (PURCHASE COLLEGE) were negligent and careless in causing and creating the subject defective and dangerous condition. Additionally, THE STATE OF NEW YORK AND THE STATE UNIVERSITY OF NEW YORK (PURCHASE COLLEGE) were negligent ... in failing to properly, adequately and or timely inspect, maintain and repair the aforesaid grassy common pathway, after having been put on prior notice, actual and constructive, of the defective and dangerous condition."
The Court finds that the notice of intention, unlike the claim, also provides sufficient details about the nature of the claim, the manner in which claimant was injured and how the State was negligent. These are not mere general allegations of negligence (see Kimball Brooklands Corp. at 1033). Because the notice of intention contained sufficient details to invoke the Court's jurisdiction, claimant's motion to dismiss the first, eleventh and twelfth affirmative defenses is granted. Claimant's alternative request to treat the notice of intention as a claim is denied as moot.
The State cites several cases that do not support a different conclusion (see id. [claim alleged that the State's negligence caused flooding, but did not tie the negligence to problems with a flood wall]; Grumet at 442 [claim did not specify what caused claimant to slip and fall]).
Motion to Compel or for Discovery Sanctions
In light of the parties’ stipulation resolving their dispute as to the State's bill of particulars, claimant's motion to compliance with the demand for a bill of particulars as to affirmative defenses is denied as moot. With respect to claimant's combined demands for production of information and documents, claimant argues that the State failed to respond. Claimant now seeks an order, pursuant to CPLR 3124 and 3126, to strike the answer, for other sanctions or, alternatively, to compel the State's compliance with claimant's demands. The State opposes the motion.
Claimant's attorney attests to the following facts regarding the content and timing of discovery demands and responses prior to the filing of this motion (Marber Aff., ¶¶ 6-11). On December 1, 2020, claimant served the State with a demand for verified bill of particulars of affirmative defenses (Ex. 7) and combined demands (Ex. 8). The preliminary conference order (Ex. 9) directed that responses to claimant's demands be served by May 14, 2021 and May 18, 2021, respectively. On May 18, 2021, the State served a bill of particulars (Ex. 10). On May 24, 2021, the State served a document titled "Defendant's Discovery Exchange" providing the names of responding police officers, opposing party statements, and asserting that the State did not possess photographs. The State did not otherwise respond to the combined demands, which also sought documents and information regarding, among other things, maintenance records and complaints about the depression in the ground where claimant fell. Thereafter, claimant's attorney sent the State's attorney a letter identifying deficiencies in the State's discovery responses, to which the State's attorney responded in kind (Ex. 12 and Ex. F).
Affirmation of Paul A. Marber, Esq.
The State's attorney, Deputy Assistant Attorney General Rachel Zaffrann, attests that claimant served his demand for a bill of particulars on March 26, 2021 via email (Zaffrann Aff., ¶ 7). However, the copy of the demand for a bill of particulars attached to the opposition is dated December 1, 2020, and the State's attorney does not deny that the demand was previously served.
Neither claimant nor the State submitted a copy of this document as an exhibit.
CPLR 3124 allows a party to compel disclosure when a person has failed to comply with a request, notice, interrogatory, demand, question or order. CPLR 3126 gives courts the discretion to impose penalties including dismissal, upon parties who willfully fail to disclose information which the court orders to be disclosed. "A court may, inter alia, issue an order ‘striking out pleadings or ... rendering a judgment by default’ as a sanction against a party who ‘refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed’ " ( Argo v Queens Surface Corp. , 58 AD3d 656, 656 [2d Dept. 2009], quoting CPLR 3126 [3] ).
The State's attorney attests in her affirmation in opposition (Zaffrann Aff., ¶ 47) that, "on December 2, 2021, defendants served claimant with a Response to Combined Demands, thereby curing the alleged discovery violation." December 2, 2021 is nearly seven months after the date set in the preliminary conference order for the State to respond, May 18, 2021. No explanation for the delay is provided and a copy of the State's response to combined demands was not submitted with the State's opposition papers. Even so, claimant's motion to compel responses to the combined demands is now moot because the State has provided those responses.
With respect to the request to strike the answer and for sanctions, claimant's attorney states in his affirmation in reply, "[a]lthough defendants have now, months after the instant motion was served and filed, and only after the threat of sanctions, served a discovery response, [...] those responses were deficient for reasons stated in my letter of December 6, 2021 letter, a copy of which is annexed as Exhibit 14" (Marber Rep. Aff., ¶ 69). Notwithstanding the aforesaid delay, claimant has failed to provide the Court with the documents and a detailed explanation of the purported deficiencies in the State's responses needed to fully assess, at this time, whether the responses comply with claimant's demands. Furthermore, the record before the Court is devoid of any facts suggesting that the State acted wilfully in violation of CPLR 3126.
Claimant's attorney did not submit a copy of the December 6, 2021 letter or of the State's response to combined demands. A copy of what appears to be part of a police report about claimant's accident is instead attached as Exhibit 14.
Accordingly, claimant's motion to dismiss is denied as moot as to the ninth affirmative defense and granted as to the first, eleventh and twelfth affirmative defenses, which are dismissed. Claimant's motion to treat the notice of intention as a claim is denied as moot. Claimant's motion to compel compliance with claimant's combined demands is denied without prejudice. Claimant's motion to strike the answer or to impose other sanctions is denied. Claimant's motion to compel further responses to the demand for a bill of particulars as to affirmative defenses is denied without prejudice.
This constitutes the decision and order of the Court.