McCray v. State

FRANCIS T. COLLINS

Synopsis

Defendant's motion to dismiss the claim was granted on the ground claimant failed to adequately allege the "place" where his slip and fall at Great Meadow Correctional Facility occurred.

Case information

Defendant(s):

Third-party defendant(s):

Claim number(s):

Signature date:

Official citation:

Appellate results:

See also (multicaptioned case)

UID:	2017-015-288
Claimant(s):	EDWARD MC CRAY (98 A 2754)
Claimant short name:	MC CRAY
Footnote (claimant name) :
		THE STATE OF NEW YORK
Footnote (defendant name) :	The caption has been amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):
		129937
Motion number(s):	M-90912
Cross-motion number(s):	CM-91272
Judge:	FRANCIS T. COLLINS
Claimant's attorney:	Law Office of Devon M. Wilt By: Devon M. Wilt, Esq.
Defendant's attorney:	Honorable Eric T. Schneiderman, Attorney General By: Paul F. Cagino, Esq. Assistant Attorney General
Third-party defendant's attorney:
		December 4, 2017
City:	Saratoga Springs
Comments:

Decision

Defendant moves for dismissal pursuant to CPLR 3211 (a) (2) on the ground the claim fails to meet the pleading requirements of Court of Claims Act § 11 (b). Claimant cross-moves to amend the claim.

Claimant, an inmate, seeks damages for personal injuries allegedly sustained in a trip and fall accident in the recreation yard of Great Meadow Correctional Facility (GMCF) on April 10, 2017. Defendant contends in support of its motion that the claim fails to meet the pleading requirements of Court of Claims Act § 11 (b) in that it fails to sufficiently set forth the place where claimant's accident occurred.

The claim indicates that the accident took place at the "[b]lack top cement court in the Main Yard of [GMCF]" (defendant's Exhibit A, p. 2, pars. denominated "3&4"). The location of the accident is also referenced in that portion of the claim describing the manner in which the accident occurred:

"On April 10, 2017, at or about 10:25 A.M., while claimant was lining up to exit the Main Yard on the black top cement court of [GMCF], he was caused to trip and fall due to a broken, lifted, depressed, defective, cracked and uneven cement court causing serious and permanent injuries to claimant" ( id.)

In his cross motion, claimant seeks to amend the above portion of his claim to assert the following:

"On April 10, 2017, at or about 10:25 A.M., while claimant was lining up on the runway near the 'Storehouse Gate' to exit the Main Yard, which is approximately forty (40) to fifty (50) feet from the Guard Tower, on the black top cement court of GCF, he was caused to trip and fall due to a broken, lifted, depressed, defective, cracked and uneven cement court causing serious and permanent injuries to claimant" (claimant's Exhibit 2, p. 2, pars. denominated "3&4").

Court of Claims Act § 11(b) places five specific substantive conditions upon defendant's waiver of sovereign immunity by requiring the claim to specify "the time when and the place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and . . . the total sum claimed" (Court of Claims Act § 11 [b]). These requirements are "strictly construed" (Kolnacki v State of New York, 8 NY3d 277, 280 [2007]) and the defendant is not required "to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski v State of New York, 1 NY3d 201, 207 [2003]; see also Dixon v State of New York, 153 AD3d 1529 [3d Dept 2017]; but see Davila v State of New York, 140 AD3d 1415, 1416 [3d Dept 2016]). The guiding principle in determining the sufficiency of the claim is whether it is sufficiently definite " 'to enable the State. . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances' " (Lepkowski, 1 NY3d at 207, quoting Heisler v State of New York, 78 AD2d 767, 767 [1980]). "Failure to abide by these pleading requirements constitutes a jurisdictional defect mandating dismissal of the claim, even though this may be a harsh result" (Sommer v State of New York, 131 AD3d 757, 758 [3d Dept 2015], quoting Morra v State of New York, 107 AD3d 1115, 1116 [3d Dept 2013]; see also Dinerman v NYS Lottery, 69 AD3d 1145, 1146 [2010], lv dismissed 15 NY3d 911 [2010]; Nasir v State of New York, 41 AD3d 677 [2d Dept 2007]; Mujica v State of New York, 24 AD3d 898 [3d Dept 2005], lv denied 7 NY3d 701 [2006]).

In support of its dismissal motion, defendant submits the affidavit of Jonathan Michael, a Lieutenant employed by the Department of Corrections and Community Supervision. Lieutenant Michael has been employed at GMCF for 25 years and states he is "very familiar"with the Main Yard at GMCF, which he estimates is 100 yards by 75 yards in size (defendant's Exhibit B, ¶ 8). Lieutenant Michael states that "[o]n the inmate's description of where the accident occurred and the size of the 'Main Yard' I am unable to determine where this 'trip and fall' is alleged to have occurred" (id. at ¶ 9).

Given the nature of the claim and the size of the Main Yard in which the accident allegedly occurred, the Court agrees that the location of the accident is insufficiently described to enable the defendant to determine the situs of the accident and assess its liability (see Sommer, 131 AD3d at 758 [notice of intention alleging that claimant slipped and fell on ice on a sidewalk "on the campus of the State University of New York at Oneonta" was insufficient to extend the time to serve and file a claim]; Wilson v State of New York, 61 AD3d 1367 [4th Dept 2009] [vague and contradictory description of the place of the accident made it impossible for the defendant to determine the situs of the fall]; Triani v State of New York, 44 AD3d 1032 [2d Dept 2007] [claim's description of the place of the accident was insufficient]; Shiels v State of New York, 249 AD2d 459 [2d Dept 1998] [place of accident, described in both the notice of intention and the claim as having occurred "while the injured claimant was walking across Route 112/25A in front of the Infant Jesus Church, in Port Jefferson" was insufficient, and the photocopied photographs attached to the notices were too vague, to determine where along the 1000-foot frontage the claimant fell]; Schneider v State of New York, 234 AD2d 357 [2d Dept 1996] [notice of intention and claim alleging claimant slipped and fell "in the picnic area adjacent to the parking area" at Heckscher State Park were insufficient where there were several picnic areas in the park]; Riefler v State of New York, 228 AD2d 1000 [3d Dept 1996] [vague and contradictory description of the accident scene made it impossible for the State to determine the situs of claimant's fall]). While claimant cites Acee v State of New York (81 AD3d 1410 [4th Dept 2011]) to support his contention that the place of the accident was adequately described in the claim, Acee concerned the adequacy of a notice of intention, not a claim, and it is well settled that "[e]very element in a notice of intention need not be set forth with formalistic rigidity and it should not be scrutinized as strictly as a pleading" (Sega v State of New York, 246 AD2d 753, 755 [3d Dept 1998], lv denied 92 NY2d 805 [1998], quoting Cannon v State of New York, 163 Misc 2d 623, 626 [Ct Cl, 1994]). Moreover, as described by the Court in Acee, the notice of intention therein described the place of the fall as "near the gate to the entrance of the facility [Groveland Correctional Facility], and . . . implicitly sets forth that the accident occurred between the correctional facility and claimant's parked vehicle" (id. at 1411 [internal quotation marks omitted]). Here, by contrast, the claim includes only the vague allegation that the accident occurred "while claimant was lining up to exit the Main Yard on the black top cement court" of GMCF (defendant's Exhibit A, ¶ denominated 3&4). Given the size of the Main Yard, and the lack of any detail regarding where in the yard the line was forming, the Court finds that the "place" of the accident was not described sufficiently to enable the defendant to determine the location within the yard where the accident allegedly occurred. Inasmuch as "the 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" (Hargrove v State of New York, 138 AD3d 777, 778 [2d Dept 2016], quoting Cobin v State of New York, 234 AD2d 498, 499 [internal quotation marks omitted]; see also Lepkowski, 1 NY3d at 208), dismissal of the claim is required.

To the extent claimant seeks leave to serve and file an amended claim, the law is settled that a jurisdictionally defective claim may not be cured through amendment (Hogan v State of New York, 59 AD3d 754, 755 [3d Dept 2009]; Dinerman v NYS Lottery, 69 AD3d 1145, 1146 [3d Dept 2010]; Manschul Constr. Corp. v State Ins. Fund, 118 AD2d 983, 985 [3d Dept 1986]).

Based on the foregoing, defendant's motion is granted, claimant's cross motion is denied, and the claim is dismissed.

December 4, 2017

Saratoga Springs, New York

FRANCIS T. COLLINS

Judge of the Court of Claims Papers Considered:

1. Notice of motion by Paul F. Cagino, Esq., dated August 14, 2017;
2. Affirmation in support with Exhibit A-C, dated August 14, 2017;
3. Notice of cross motion by Devon M. Wilt, Esq., dated October 24, 2017;
4. Affirmation in support with Exhibits 1 and 2, dated October 24, 2017.