Kimball Brooklands Corp. v. State, 2017–05438

• Decision Date: 26 February 2020
• Docket Number: Claim No. 122734,2017–05438
• Citation: 121 N.Y.S.3d 129,180 A.D.3d 1031
• Parties: KIMBALL BROOKLANDS CORPORATION, Appellant, v. STATE of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

180 A.D.3d 1031

121 N.Y.S.3d 129

KIMBALL BROOKLANDS CORPORATION, Appellant,

v.STATE of New York, Respondent.

2017–05438

Claim No. 122734

Supreme Court, Appellate Division, Second Department, New York.

Argued - October 11, 2019

February 26, 2020

The Deiorio Law Group, PLLC, Rye Brook, N.Y. (Vincent Gelardi of counsel), for appellant.

Letitia James, Attorney General, New York, N.Y. (Anisha S. Dasgupta, David S. Frankel, and Blair Greenwald of counsel), for respondent.

WILLIAM F. MASTRO, J.P., COLLEEN D. DUFFY, BETSY BARROS, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In a claim to recover damages for injury to property, the claimant appeals from an order of the Court of Claims ( Debra A. Martin, J.), dated January 31, 2017. The order denied the claimant's motion for summary judgment on the issue of liability and granted the defendant's cross motion, inter alia, to dismiss the claim for failure to comply with the pleading requirements of Court of Claims Act § 11(b).

ORDERED that the order is affirmed, with costs.

The claimant filed this claim against the State of New York to recover damages to its property resulting from severe flooding on August 28, 2011, when, due to Hurricane Irene, the Grassy Sprain Brook, a tributary of the Bronx River, overflowed and flooded the claimant's real property. Following the completion of discovery, the claimant moved for summary judgment on the issue of liability. In support of the motion, the claimant argued, among other things, that the State had a duty to maintain a concrete flood protection wall that the State had constructed along the western boundary of the claimant's property in such condition as would prevent the flooding of the property, and that the State breached that duty by failing to prevent the property from flooding during the storm on August 28, 2011. The State cross-moved to dismiss the claim for failure to comply with the pleading requirements of Court of Claims Act § 11(b) or, in the alternative, for summary judgment dismissing the claim. In an order dated January 31, 2017, the Court of Claims denied the claimant's motion and granted the State's cross motion. The claimant appeals.

We agree with the determination of the Court of Claims that the claimant's allegations of negligence in both the notice of intention to file a claim and the notice of claim were not sufficiently specific to satisfy the pleading requirements of Court of Claims Act § 11(b). Court of Claims Act § 11(b) requires a 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 N.Y.3d 201, 207, 770 N.Y.S.2d 696, 802 N.E.2d 1094, quoting Court of Claims Act § 11[b] ). " ‘[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’ " ( Lichtenstein v. State of New York, 93 N.Y.2d 911, 913, 690 N.Y.S.2d 851, 712 N.E.2d 1218, quoting Dreger v. New York State Thruway Auth., 81 N.Y.2d 721, 724, 593 N.Y.S.2d 758, 609 N.E.2d 111 ; see Kolnacki v. State of New York, 8 N.Y.3d 277, 281, 832 N.Y.S.2d 481, 864 N.E.2d 611 ).

"[A]bsolute exactness is not required" ( Morra v. State of New York, 107 A.D.3d 1115, 1115, 967 N.Y.S.2d 169 [internal quotation marks omitted]; see Wharton v. City Univ. of N.Y., 287 A.D.2d 559, 559, 731 N.Y.S.2d 650 ). However, "the claim must ‘provide a sufficiently detailed description of the particulars of the claim to enable [the State] to investigate and promptly ascertain the existence and extent of its liability’ " ( Morra v. State of New York, 107 A.D.3d at 1115–1116, 967 N.Y.S.2d 444, quoting Robin BB. v. State of New York, 56 A.D.3d 932, 932, 867 N.Y.S.2d 284 ; see Matter of New York City Asbestos Litig., 24 N.Y.3d 275, 282, 998 N.Y.S.2d 150, 22 N.E.3d 1018 ; Davila v. State of New York, 140 A.D.3d 1415, 1416, 34 N.Y.S.3d 508 ). " ‘[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 its requirements’ " ( Wharton v. City Univ. of N.Y., 287 A.D.2d at 560, 731 N.Y.S.2d 650, quoting Grumet v. State of New York, 256 A.D.2d 441, 442, 682 N.Y.S.2d 86 ). The State "is not required to ‘ferret out or assemble information that section 11(b) obligates the claimant to allege’ " ( Davila v. State of New York, 140 A.D.3d at 1416, 34 N.Y.S.3d 508, quoting Lepkowski v. State of New York, 1 N.Y.3d at 208, 770 N.Y.S.2d 696, 802 N.E.2d 1094 ). A claimant's failure to sufficiently particularize the nature of its claim constitutes a jurisdictional defect mandating dismissal (see Fairchild Corp. v. State of New York, 117 A.D.3d 780, 780, 985 N.Y.S.2d 697 ; Young v. State of New York [Univ. Hosp. of Brooklyn–Downstate Med. Ctr.], 82 A.D.3d 972, 973, 918 N.Y.S.2d 777 ).

Here, the claimant failed to allege in either the notice of intention to file a claim or the notice of claim the particular manner in which the State was negligent, including, as the claimant subsequently sought...