Sommer v. State

• Decision Date: 06 August 2015
• Docket Number: 20199
• Citation: 131 A.D.3d 757,2015 N.Y. Slip Op. 06472,14 N.Y.S.3d 813
• Parties: Russell SOMMER, Appellant, v. STATE of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

131 A.D.3d 757

14 N.Y.S.3d 813

2015 N.Y. Slip Op. 06472

Russell SOMMER, Appellant

v.STATE of New York, Respondent.

20199

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

Aug. 6, 2015.

Langone & Associates, PLLC, Garden City (Richard M. Langone of counsel), for appellant.

Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondent.

Before: GARRY, J.P., EGAN JR., ROSE and LYNCH, JJ.

Opinion

LYNCH, J.

Appeal from an order of the Court of Claims (Schaewe, J.), entered July 3, 2014, which granted defendant's motion to dismiss the claim.

Claimant filed this claim in January 2013 alleging that, while on the campus of the State University of New York at Oneonta, he was injured after he slipped and fell on a patch of ice on a sidewalk that had previously been cleared by defendant's workers. Defendant moved to dismiss the claim on the ground that the notice of intention and the claim were jurisdictionally defective because they failed to set forth an adequate description of the location where the incident occurred as required by Court of Claims Act § 11(b). The Court of Claims granted defendant's motion on the basis that the claim was jurisdictionally defective. Claimant now appeals and we affirm, albeit on a different ground.

Court of Claims Act § 11(b) requires that a notice of intention to file a claim set forth, among other things, “the time when and place where such claim arose” (see Lepkowski v. State of New York, 1 N.Y.3d 201, 205, 770 N.Y.S.2d 696, 802 N.E.2d 1094 [2003] ; Czynski v. State of New York, 53 A.D.3d 881, 882, 861 N.Y.S.2d 845 [2008], lv. denied 11 N.Y.3d 715, 873 N.Y.S.2d 533, 901 N.E.2d 1287 [2009] ). While “absolute exactness” is not necessary (Morra v. State of New York, 107 A.D.3d 1115, 1115, 967 N.Y.S.2d 169 [2013] [internal quotation marks and citation omitted]; see Deep v. State of New York, 56 A.D.3d 1260, 1260, 867 N.Y.S.2d 833 [2008] ), 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” (Flemming v. State of New York, 120 A.D.3d 848, 848, 991 N.Y.S.2d 181 [2014] [internal quotation marks and citation omitted]; see Robin BB. v. State of New York, 56 A.D.3d 932, 932–933, 867 N.Y.S.2d 284 [2008] ). “Failure to abide by these pleading requirements constitutes a jurisdictional defect mandating dismissal of the claim, even though this may be a harsh result” (Morra v. State of New York, 107 A.D.3d at 1116, 967 N.Y.S.2d 169 ; see Kolnacki v. State of New York, 8 N.Y.3d 277, 281, 832 N.Y.S.2d 481, 864 N.E.2d 611 [2007] ; Dinerman v. NYS Lottery, 69 A.D.3d 1145, 1146, 893 N.Y.S.2d 681 [2010], lv. dismissed 15 N.Y.3d 911 913 N.Y.S.2d 124, 939 N.E.2d 141 [2010] ).

Claimant's notice of intention states that he slipped and fell on unseen ice on a sidewalk “on the campus of the State University of New York at Oneonta.” While we recognize that notices of intention are reviewed less strictly than claims (see Czynski v. State of New York, 53 A.D.3d at 883, 861 N.Y.S.2d 845 ; Epps v. State of New York, 199 A.D.2d 914, 914, 606 N.Y.S.2d 64 [1993] ), we nevertheless find that this generalized description of the location at which claimant fell was insufficient to permit defendant to investigate its liability (see Wilson v. State of New York, 61 A.D.3d 1367, 1368–1369, 876 N.Y.S.2d 818 [2009] ; Sega v. State of New York, 246 A.D.2d 753, 755, 668 N.Y.S.2d 56 [1998], lv. denied 92 N.Y.2d 805, 677 N.Y.S.2d 781, 700 N.E.2d 320 [1998] ; Schneider v. State of New York, 234 A.D.2d 357, 357, 650 N.Y.S.2d 798 [1996] ; compare Mosley v. State of New York, 117 A.D.3d 1417, 1418, 985 N.Y.S.2d 359 [2014] ; Acee v. State of New York, 81 A.D.3d 1410, 1411, 917 N.Y.S.2d 476 [2011] ; Cannon v. State of New York, 163 Misc.2d 623, 627, 622 N.Y.S.2d 177 [Ct.Cl., Nov. 15, 1994, Silverman, J., claim No. 89038] ).¹ Because claimant's notice of intention was deficient, claimant did not receive the benefit of the two-year extension and was obligated to file his claim within 90 days of its accrual (see Langner v. State of New York, 65 A.D.3d 780, 781–782, 883 N.Y.S.2d 667 [2009] ; Cendales v. State of New York, 2 A.D.3d 1165, 1167, 770 N.Y.S.2d 174 [2003] ; Ferrugia v. State of New York, 237 A.D.2d 858, 859 n., 655 N.Y.S.2d 174 [1997] ; see also Court of Claims Act § 10[3] ). As claimant failed to do so, his claim was properly dismissed.

ORDERED that the order is affirmed, without costs.

GARRY, J.P., EGAN JR. and ROSE, JJ., concur.

1 While claimant invites us to consider defendant's swift response to the scene of the fall as evidence of its awareness of the accident's precise location, we need only note that “defendant is not required to go beyond the claim [or notice...