Alati v. State

• Decision Date: 22 December 2021
• Docket Number: Claim No. 133697
• Citation: 74 Misc.3d 1206 (A),159 N.Y.S.3d 821 (Table)
• Parties: Diana ALATI, Individually, and as Co -Administrator of the Estate of Andrew Alati, deceased, and Attilio Alati, Individually, and as Co -Administrator of the Estate of Andrew Alati, deceased, Claimant, v. The STATE of New York, Defendant.
• Court: New York Court of Claims

74 Misc.3d 1206 (A)

159 N.Y.S.3d 821 (Table)

Diana ALATI, Individually, and as Co -Administrator of the Estate of Andrew Alati, deceased, and Attilio Alati, Individually, and as Co -Administrator of the Estate of Andrew Alati, deceased, Claimant,

v.The STATE of New York,¹ Defendant.

Claim No. 133697

Court of Claims of New York.

Decided on December 22, 2021

For Claimant: Dell & Dean, PLLC, By: Andrea R. Laterza, Esq.

For Defendant: HON. LETITIA JAMES, ATTORNEY GENERAL, By: John L. Belford, IV, Assistant Attorney General

Maureen Liccione, J.

The instant claim was filed on September 26, 2019 and served by claimants Diana Alati and Attilio Alati, co-administrators of the estate of Andrew Alati, on September 23, 2019. Issue was joined on November 4, 2019. Claimants now move for leave to amend the claim, or, in the alternative, for leave to file and serve a late claim. Defendant opposes the motion.

The claim (Affirmation in Support, Exhibit A), arose on June 30, 2019 at approximately 6:05 p.m. when claimants' decedent, Andrew Alati, was crossing Hempstead Turnpike (New York State Route 24) in Levittown, New York on or with his bicycle. Andrew was crossing Hempstead Turnpike northbound, on the west side of the intersection of Hempstead Turnpike and Berger Avenue when he was struck by a motor vehicle, sustaining injuries that resulted in his death. The claim alleges the divider where Andrew was struck had improper signals, markings and defective design. The claim asserts several causes of action for negligent highway design.

Claimants now seek to amend the location where the claim arose. The original claim states that the place where the claim arose is as follows:

Roadway divider located within the middle of the roadway, and/or the roadway, at the location near or about 3850 Hempstead Turnpike (NY State Route 24), Levittown, New York, in the County of Nassau, State of New York. The location is at or around the west side of the intersection of Hempstead Turnpike and Berger Avenue. Hempstead Turnpike runs east-west direction, and Berger Avenue runs north-south direction (Verified Claim, p. 2).

Claimants explain that the original police accident report (Affirmation in Support, Exhibit C), listed the accident location as 3850 Hempstead Turnpike, which is the location that claimants stated in their original claim. Thereafter, the Nassau County Police Department's Detective Division issued a supplementary report (Affirmation in Support, Exhibit D), that listed the accident scene as located in front of 2575 Hempstead Turnpike. Claimants' counsel then investigated the accident location and determined that the accident actually occurred in front of 3767 Hempstead Turnpike (Affirmation in Support, ¶ 8). The amended accident location is .2 miles from the accident location pled in the original claim and spans the length of the Target parking lot, which is located at 3850 Hempstead Turnpike — the address identified in the original claim (id. , ¶¶ 29-30). The proposed amended claim states that the place where the claim arose is as follows:

Roadway divider located within the middle of the roadway, and/or the roadway, at the location near or about 3767 Hempstead Turnpike (NY State Route 24), Levittown, New York, in the County of Nassau, State of New York. The location is at or around the intersection of Hempstead Turnpike and the unnamed cross street connecting the parking lots between 3767 Hempstead Turnpike and 3850 Hempstead Turnpike. Hempstead Turnpike runs east-west direction, and the aforementioned cross street runs north-south direction (Affirmation in Support, Exhibit E, p. 2).

Defendant argues that, because claimants concede that the proposed amended accident location is .2 miles from the location originally pled, the claim is jurisdictionally defective for failing to comply with Court of Claims Act § 11 (b) (Affirmation in Opposition, ¶ 6). As jurisdictional defects cannot be cured by an amendment, defendant argues that the claim cannot be amended and must be dismissed (Miller v State of New York , UID No. 2019-054-038 [Ct Cl, W. Rivera, J., July 19, 2019]).²

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 v State of New York , 1 NY3d 201, 206 [2003] [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 AD3d 1415, 1416 [3d Dept 2016] [internal quotation marks and citations omitted]; see Morra v State of New York , 107 AD3d 1115, 1115 [3d Dept 2013] ; Deep v State of New York , 56 AD3d 1260, 1261 [4th Dept 2008] ). "Further, the State is not required to go beyond the claim or notice of intention in order to investigate an occurrence, or ferret out information which should be provided under section 11(b)" ( Wilson v State of New York , 35 Misc 3d 227, 230 [Ct Cl 2011], citing Lepkowski v State of New York , 1 NY3d at 208 ; Cobin v State of New York , 234 AD2d 498, 499 [2d Dept 1996], lv dismissed 90 NY2d 925 [1997] ).

It is well-established that a lack of detail as to the exact location of an incident renders a claim jurisdictionally defective where the claim alleges an injury caused by an alleged defect on the premises (see Vargas v State of New York , 83 AD3d 1525 [4th Dept 2011] [dismissal of claim affirmed where location of motorcycle accident on a 4.7 mile stretch of roadway was not specified]; Sheils v State of New York , 249 AD2d 459, 459-460 [2d Dept 1998] [notice of intention to file a claim insufficient where the accident location did not identify specific defect location in 1,000-foot roadway]; Cobin v State of New York , 234 AD2d at 499 [description of trip and fall location "on the boardwalk at Jones Beach, County of Nassau, State of New York, in the East Quarter Circle, or its vicinity" was insufficient to comply with Court of Claims Act § 11 (b) ]). In contrast, in a claim concerning the claimant's motor vehicle accident involving a State-owned vehicle, the Fourth Department held that the claimant's identification of the specific street where the collision occurred, with no other identifying information, was sufficient to comply with Court of Claims Act § 11 (b) even though the street was 3.2 miles in length (Deep v State of New York , 56 AD3d at 1260-1260 ). In Deep , the Court reasoned that, because of the nature of the claim, "i.e., a motor vehicle accident allegedly caused by the negligent driving of defendant's agent," the identification of the specific street where the accident occurred was sufficient to allow the State to investigate the claim ( id. at 1261 ). However, in Liberty Mut. Ins. Co. v State of New York , 30 Misc 3d 693, 696 [Ct Cl 2010], which also involved a motorcycle accident, the Court held that the claimant's misidentification of the intersection where the collision occurred rendered the claim jurisdictionally deficient. The Court in Liberty Mut. Ins. Co. reasoned that "in any intersection collision, the configuration of signs, traffic lights and other indicators and what claimant alleges about them are critical to satisfying § 11(b) of the [Court of Claims] Act" (id. ). Because the claim directed defendant to the wrong intersection, defendant could not know what configuration of traffic signals were in place that may have contributed to the accident (see id. ). Similarly, in a claim alleging negligent highway design, the identification of a 10-mile roadway was found to be insufficient to comply with Court of Claims Act § 11 (b) (Mutton v State of New York , UID No. 2019-040-015 [Ct Cl, McCarthy, J., Feb. 13, 2019]). Considering these cases, it is apparent to the Court that to determine the sufficiency of the stated accident location, the Court must look to the specific allegations contained in the claim to determine if the alleged location is "sufficient to allow defendant to investigate the claim in a prompt manner and to assess its potential liability" (Deep , supra at 1261 ).

Here, the claim states that defendant was negligent in failing to have a crosswalk or a properly painted crosswalk; having poor pedestrian signals or failing to have proper pedestrian signals in place; failing to have railings erected within the roadway divider; providing inadequate time to safely cross a major highway; failing to anticipate heavy pedestrian traffic or minors crossing near the Target store located at 3850 Hempstead Turnpike; failing to have adequate and appropriate signage and warnings thereat; and failing to have proper safety devices at that location, among other allegations (Affirmation in Support, Exhibit A).

Guided by the principles stated above, the Court finds that the accident location described in the claim was insufficient to comply with Court of Claims Act § 11 (b). While the verified claim states that the accident occurred "near or about 3850 Hempstead Turnpike" (Affirmation in Support, Exhibit A), the proposed amended claim states that the accident occurred "near or about 3767 Hempstead Turnpike" (id. , Exhibit E). Moreover, the verified claim states that the accident occurred at the intersection of Hempstead Turnpike and Berger Avenue, while the proposed amended claim states that the accident took place at the intersection of Hempstead Turnpike and an unnamed cross street connecting the parking lots between 3767 Hempstead Turnpike and 3850 Hempstead Turnpike. Given the nature of the claim and the allegations contained therein, the Court finds that the location description in the verified claim does not comply with Court of Claims Act § 11 (b). Claimants allege that defendant was...