Opinion
# 2019-028-575 Claim No. 127298 Motion No. M-88172 Motion No. M-88744
09-18-2019
NICHOLAS L. VASSENELLI v. THE STATE OF NEW YORK
BOSMAN LAW FIRM, LLC BY: A. J. Bosman, Esq. HON. LETITIA JAMES, ATTORNEY GENERAL BY: Bonnie Gail Levy, Esq. Assistant Attorney General
Synopsis
Defendant's motion to dismiss the claim for lack of jurisdiction based upon a failure to specify the injuries claimed in accordance with Court of Claims Act §11 (b) was denied as was the motion to dismiss the amended claim.
Case information
| UID: | 2019-028-575 |
| Claimant(s): | NICHOLAS L. VASSENELLI |
| Claimant short name: | VASSENELLI |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127298 |
| Motion number(s): | M-88172, M-88744 |
| Cross-motion number(s): | |
| Judge: | RICHARD E. SISE |
| Claimant's attorney: | BOSMAN LAW FIRM, LLC BY: A. J. Bosman, Esq. |
| Defendant's attorney: | HON. LETITIA JAMES, ATTORNEY GENERAL BY: Bonnie Gail Levy, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 18, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read on defendant's motions to dismiss pursuant to CPLR 3211 and the Court of Claims Act:
1. Notice of Motion dated February 10, 2016;
2. Affirmation of Bonnie Gail Levy dated February 10, 2016 with Exhibits 1-3 annexed;
3. Notice of Motion dated June10, 2016;
4. Affirmation of Bonnie Gail Levy dated June 10, 2016 with Exhibits A-D annexed;
5. Affirmation of A. J. Bosman dated July 13, 2016 with Exhibits A-B annexed.
Filed papers: Claim, Amended Claim
Defendant has moved to dismiss the claim on the basis that the pleading fails to specify the injuries claimed as required by Court of Claims Act §11 (b). Defendant has further moved to dismiss the amended claim on the basis that it was not timely served or filed and cannot be substituted for the original claim which is jurisdictionally defective.
The State's waiver of immunity from liability is conditioned upon compliance with the limitations of Court of Claims Act article II which includes section 11 of the Act (Court of Claims Act §8). Thus, the requirements of section 11 (b) are jurisdictional in nature and a failure to comply deprives the court of subject matter jurisdiction (Clark v State of New York, 165 AD3d 1371 [3d Dept 2018]). Court of Claims Act § 11 (b) provides that the claim shall state " the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed. "
The claim here is based on allegations that defendant was negligent in failing to repair a door at the Institute for Human Performance, an Upstate University Hospital facility, and as a result claimant was struck on his left arm by the door. More specifically, claimant, who is partially paralyzed and wheelchair bound, alleges, in both the notice of intention and the claim, that he was "subjected to physical injury, pain and suffering as a result of being struck in his left arm by a nonoperational door." Defendant contends that the statement fails to sufficiently specify the injuries suffered as required by Court of Claims Act § 11 (b) and consequently, must be dismissed.
The guiding principle informing section 11 (b) is to provide the State with a sufficiently definite statement of the items of damage or injury claimed so as to allow for prompt investigation and to ascertain its liability under the circumstances (Lepkowski v State of New York, 1 NY3d 201, 207 [2003]). Here, claimant has pleaded a relatively straightforward claim for personal injury in which he has alleged a physical injury caused by being struck by a door on a particular part of his body. Though the pleading lacks detail in describing the particular nature of the injuries suffered, the allegation is sufficiently specific and limiting to afford defendant the benefits of the pleading requirement (see Donahue v State of New York, 174 AD3d 1549 [4th 2019] [claim alleged injuries to the shoulder, bicep, and elbow]).
The motion to dismiss the amended claim stems from the assertion that the original claim was jurisdictionally defective and thus, cannot be cured. Given that the original claim is not defective, and considering that claimant served the amended claim as of right prior to defendant having answered (CPLR 3025 [a]), the motion to dismiss the amended claim is without merit.
Accordingly, it is
ORDERED, that the motions to dismiss are denied.
September 18, 2019
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims