Opinion
Claim No. 137469
06-07-2022
Marian T. Williams and Gerwyn Williams, Claimant v. The State of New York, Defendant.
Claimant's attorney WORBY, VECCHIO, EDELMAN, LLP Mark D. Stumer, Esq. Defendant's attorney HON. LETITIA JAMES Attorney General for the State of New York Dian Kerr McCullough, Assistant Attorney General
Unpublished Opinion
Claimant's attorney WORBY, VECCHIO, EDELMAN, LLP Mark D. Stumer, Esq.
Defendant's attorney HON. LETITIA JAMES Attorney General for the State of New York Dian Kerr McCullough, Assistant Attorney General
Walter Rivera, J.
Claim dismissed, trip and fall state park, both the notice of intention to file a claim and the claim fail to state the nature of the claim and location of the accident to comply with Court of Claims Act § 11 (b).
The following papers numbered 1-3 were read and considered by the Court on defendant's motion to dismiss the claim (Motion No. M-98031)
Notice of Motion, Attorney's Supporting Affirmation and Exhibits 1
Attorney's Affirmation in Opposition 2
Attorney's Reply Affirmation 3
The instant claim was filed on February 8, 2022 and served upon the Attorney General (AG) on February 22, 2022. The claim seeks damages for injuries sustained on December 10, 2020 when claimant tripped and fell on a walkway/pedestrian path at Franklin D. Roosevelt State Park (FDR Park) in the Town of Yorktown, County of Westchester, State of New York (Defendant's Ex. A, ¶ 3; Defendant's Ex. B, ¶¶ 5, 11). A notice of intention to file a claim was served upon the AG on March 8, 2021.
Defendant now moves to dismiss the claim on the ground that both the notice of intention to file a claim and the claim fail to comply with Court of Claims Act § 11 (b). Specifically, defendant argues that both the notice of intention to file a claim and the claim fail to state the nature of the claim and location of the accident with sufficient particularity to comply with Court of Claims Act § 11 (b).
"The State's waiver of immunity from suits for money damages is not absolute, but rather is contingent upon a claimant's compliance with specific conditions placed on the waiver by the Legislature" (Lepkowski v State of New York, 1 N.Y.3d 201, 206 [2003]; see Court of Claims Act § 8; Alston v State of New York, 97 N.Y.2d 159, 163 [2001]). Moreover, "[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Matter of New York City Asbestos Litig., 24 N.Y.3d 275, 281 [2014] [internal quotation marks and citations omitted]). As relevant here, Court of Claims Act § 11 (b) "places five specific substantive conditions upon the State's waiver of sovereign immunity by requiring the claim to specify (1) the nature of [the claim]; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries claimed to have been sustained; and (5) the total sum claimed" (Lepkowski, 1 N.Y.3d at 206 [internal quotation marks omitted]). "Absolute exactness is not required, but the claim must enable prompt investigation and be sufficiently specific to enable [a] defendant to reasonably infer the basis for its alleged liability" (Davila v State of New York, 140 A.D.3d 1415, 1416 [3d Dept 2016] [internal quotation marks and citations omitted]; see Morra v State of New York, 107 A.D.3d 1115, 1115 [3d Dept 2013]; Deep v State of New York, 56 A.D.3d 1260, 1261 [4th Dept 2008]). "The statement[s] must be specific enough so as not to mislead, deceive or prejudice the rights of the State" (Rodriguez v State of New York, 8 A.D.3d 647, 647 [2d Dept 2004]). Defendant is not required "to ferret out or assemble information that section 11 (b) obligates the [movant] to allege" (Lepkowski, 1 N.Y.3d at 208).
Here, the notice of intention to file a claim states that claimant fell while she "was walking from a parking lot area to the pavilion which contains the men's and women's restroom building" (Defendant's Ex. A, ¶ 3). The notice of intention to file a claim further states that, "[t]he defect was located on the blacktop walkway, approximately 76.5 inches from a large tree in the area; approximately 67 inches from a stone wall or pillar located in the area; and approximately 252 inches from the restroom/pavilion building itself" (id.). The notice of intention to file a claim also indicates that pictures of the defect and its location are attached to the notice of intention to file a claim (id.). In that regard, five pictures are attached to the notice of intention to file a claim, the first of which is a picture of a building and includes GPS coordinates (id., Ex. A). The claim contains the same language set forth in the notice of intention to file a claim regarding the accident location (Defendant's Ex. B, ¶ 12). The same five pictures attached to the notice of intention to file a claim are also attached to the claim (id., Ex. A).
In support of its motion to dismiss, defendant submits the affidavit of Frank Mami, Park Manager of the FDR Park for the past six years (Defendant's Ex. C, ¶ 1). As Park Manager, Mami is fully familiar with the locations of all parking lots and restroom pavilions located in the park (id., ¶ 5). Mami avers that the FDR Park contains approximately 960 acres of land and contains "six parking lots, six restroom pavilions, multiple paths that are near restroom pavilions, multiple rock walls and thousands of large trees near these paths and restroom/pavilions" (id., ¶ 6). Exhibit 1 to Mami's affidavit is a map of FDR Park depicting the locations of the six parking lots and six restrooms, among other landmarks located in the park. The map also depicts three pavilions located in the park (Ex. 1 to Defendant's Ex. C).
Defendant argues that claimant's description of the accident location is insufficient because the claim does not specify the parking lot from which she was walking or the restroom near where the defect was located. In response, claimant argues that the GPS coordinates located on the first picture attached to both the notice of intention to file a claim and the claim are sufficient to comply with the requirements of Court of Claims Act § 11 (b).
"A claimant must 'provide a sufficiently detailed description of the particulars of the claim to enable [defendant] to investigate and promptly ascertain the existence and extent of its liability'" (Sommer v State of New York, 131 A.D.3d 757, 757-758 [3d Dept 2015], quoting Flemming v State of New York, 120 A.D.3d 848, 848 [3d Dept 2014] [additional citations omitted]). Thus, Court of Claims Act § 11 (b) requires specificity where the description provided in a notice of intention to file a claim or a claim could reasonably encompass more than one location. For example, in Schneider v State of New York [234 A.D.2d 357, 357 (2d Dept 1996)], the Second Department found a location description insufficient where the claim alleged that the claimant tripped and fell "in the picnic area adjacent to the parking area" at Heckscher State Park. A map of Heckscher State Park attached to the State's moving papers depicted "multiple" picnic areas adjacent to parking lots at several locations throughout the park (id.). The Court therefore found that the claimant's description did not comply with Court of Claims Act § 11 (b) (id.). Similarly, in Katan v State of New York [174 A.D.3d 1212, 1213 (3d Dept. 2019)], the Third Department found a location description insufficient where the claim alleged that claimant fell on stairs proximate to Moffit Hall and Clinton Dining Hall on the campus of the State University of New York at Plattsburgh. In affirming the lower court's dismissal of the claim, the Third Department noted that there were three separate staircases proximate to Moffit Hall and Clinton Dining Hall (id.). Because the description of the location could have referred to any of the three staircases, the claim failed to comply with Court of Claims Act § 11 (b). Courts have routinely found that location descriptions do not comply with Court of Claims Act § 11 (b) where the description could refer to several different locations (see Smith v Village of Hempstead, 143 A.D.2d 897, 897-898 [2d Dept 1988] [finding location description insufficient where there were four parking lots located near the named intersection]; Alpert v State of New York, UID No. 2017-040-027 [Ct Cl, McCarthy, J., Mar. 1, 2017] [finding that the proposed claim failed to set forth the place where the claim arose where there were two staircases in the subject building and claimant failed to identify the staircase where the accident occurred]).
Unpublished decisions and selected orders of the Court of Claims are available at http://www.nyscourtofclaims.state.ny.us.
The affidavit of Frank Mami establishes that FDR Park contains six parking lots and six restroom buildings (Defendant's Ex. C, ¶ 6). The map attached to Mami's affidavit also shows three pavilions located in the park (Ex. 1 to Defendant's Ex. C). Claimant's description of the accident location as "located on the blacktop walkway, approximately 76.5 inches from a large tree in the area; approximately 67 inches from a stone wall or pillar located in the area; and approximately 252 inches from the restroom/pavilion building itself" (Defendant's Ex. A, ¶ 3 and Ex. B, ¶ 12) does not comply with Court of Claims Act § 11 (b) as it does not provide the State with any information from which it can determine the restroom or pavilion building where the accident occurred. Although claimant argues that the pictures and GPS coordinates provided to the State with the notice of intention to file a claim and the claim direct defendant to the accident location," '[t]he State is not required to go beyond a claim or notice of intention in order to investigate an occurrence or ascertain information which should be provided pursuant to Court of Claims Act § 11'" (Criscuola v State of New York, 188 A.D.3d 645, 646 [2d Dept 2020], quoting Matter of DeMairo v State of New York, 172 A.D.3d 856, 857 [2d Dept 2019] [additional citation omitted]). The pictures and the GPS coordinates, without more, require defendant to go beyond the notice of intention to file a claim and the claim to determine which of the six parking lots claimant was walking from and which of the six restrooms claimant was walking toward to determine the accident location. As such, this requires the State "to ferret out or assemble information that section 11 (b) obligates the claimant to allege[,]" which it is not required to do (Lepkowski, 1 N.Y.3d at 208). Accordingly, both the notice of intention to file a claim and the claim are jurisdictionally defective for failing to comply with Court of Claims Act § 11 (b).
Moreover, the claim fails to allege the time when the claim arose, in contravention of Court of Claims Act § 11 (b), which requires that a claim or notice of intention to file a claim state "the time when and place where such claim arose...." Here, while the notice of intention to file a claim states that the claim arose "at approximately 12:00pm [sic]" (Defendant's Ex. A, ¶ 3), the claim does not contain any language indicating the time when the claim arose. The failure to state the time when the claim arose is a jurisdictional defect, requiring dismissal of the claim (see Harper v State of New York, 34 A.D.2d 865, 865 [3d Dept 1970] [dismissing claim for failure to state the time when the claim arose]; McCrory v C.O. Graden Reppert, et al., UID No. 2014-049-022 [Ct Cl, Weinstein, J., May 1, 2014] [dismissing claim for failure to state the date and time the claim arose]).
Based upon the foregoing, defendant's motion to dismiss the claim is granted and Claim No. 137469 is dismissed.
This constitutes the Decision and Order of this Court.