Wilson v. State

• Decision Date: 28 October 2011
• Docket Number: No. 115403.,115403.
• Citation: 935 N.Y.S.2d 454,35 Misc.3d 227,2011 N.Y. Slip Op. 21436
• Parties: William A. WILSON and Amy Wilson, his spouse, Claimants, v. STATE of New York and New York State Thruway Authority and Canal Corporation, 1 Defendants.
• Court: New York Court of Claims

2011 N.Y. Slip Op. 21436

35 Misc.3d 227

935 N.Y.S.2d 454

William A. WILSON and Amy Wilson, his spouse, Claimants,

v.STATE of New York and New York State Thruway Authority and Canal Corporation, 1 Defendants.

No. 115403.

Court of Claims of New York.

Oct. 28, 2011.

Lipsitz Green Scime Cambria LLP by James T. Scime, Esq. and Jaclyn S. Wanemaker, Esq., for Claimants.

Eric T. Schneiderman by William D. Lonergan, Esq., Assistant Attorney General, for Defendants.

MICHAEL E. HUDSON, J.

Claimants seek to recover for injuries allegedly sustained by Claimant William A. Wilson ² in a fall while riding a bicycle in Niagara County, New York, on or about June 18, 2007. After serving their notice of intention to file a claim in early August of 2007, Claimants filed this claim in June of 2008. In their claim the Wilsons described the location of the accident as “near the east ramp of Upper Mountain Road Extension, located in the County of Niagara and State of New York” (claim, paragraph 4). Their recitation of the manner of occurrence of the incident provided some further reference to location, namely that Mr. Wilson was “riding his bicycle on the above-referenced roadway,” and was caused to fall “due to a defective condition of the road” (claim, paragraph 5). Those allegations with respect to the place of the alleged fall mirrored identical provisions within the notice of intention the Wilsons had previously served ( see Affidavit of William D. Lonergan [Lonergan affidavit], exhibit A [notice of intention to file claim], paragraphs 4, 5). Defendants filed their answer on August 6, 2008, in which they asserted as their fourth affirmative defense that “[t]he contents of the Claim served herein do not comply with the provisions of Section 11 of the Court of Claims Act” (answer, paragraph tenth). Defendants further alleged as their sixth affirmative defense that [t]he claim fails to include an adequate description of the location of the incident or condition, as the case may be, alleged in the claim as required by § 11 of the Court of Claims Act and, therefore, there is no proper claim over which the Court has jurisdiction (answer, paragraph twelfth).

Defendants now move pursuant to CPLR 3212 and 3211(a)(2) and (7) to dismiss the claim as jurisdictionally defective under Court of Claims Act § 11(b), urging that the pleading failed to adequately recite the place where the incident occurred. For reasons that follow I must grant the motion and dismiss the claim.

Court of Claims Act § 11(b) sets certain specific pleading requirements as substantive conditions upon the State's waiver of sovereign immunity, with noncompliance rendering a claim jurisdictionally defective ( Lepkowski v. State of New York, 1 N.Y.3d 201, 206–207, 209, 770 N.Y.S.2d 696, 802 N.E.2d 1094 [2003]; see also Kolnacki v. State of New York, 8 N.Y.3d 277, 832 N.Y.S.2d 481, 864 N.E.2d 611 [2007] [addressing jurisdictional nature of requirement to plead a total sum claimed] ).³ One such pleading requirement is a recitation of the “place where such claim arose.” The failure to adequately set forth the location of an incident is a jurisdictional defect that necessitates dismissal of the claim ( Triani v. State of New York, 44 A.D.3d 1032, 845 N.Y.S.2d 81 [2007] ). Similarly, the failure to adequately state the situs of an incident within a notice of intention to file a claim renders that document jurisdictionally defective, and thereby incapable of extending a litigant's time for commencement ( Wilson v. State of New York, 61 A.D.3d 1367, 876 N.Y.S.2d 818 [2009] ).

In weighing compliance with section 11(b)'s pleading requirements, I am mindful of several factors. First, “[w]hat is required is not absolute exactness, but simply a statement made with sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances. The statement must be specific enough so as not to mislead, deceive or prejudice the rights of the State. In short, substantial compliance with section 11 [now section 11(a) and (b) ] is what is required” ( Heisler v. State of New York, 78 A.D.2d 767, 767, 433 N.Y.S.2d 646 [1980] ). Indeed, it is the need for definiteness sufficient to enable the State to promptly investigate a claim and to ascertain its liability “which is the guiding principle informing section 11(b)” ( Lepkowski, 1 N.Y.3d at 207, 770 N.Y.S.2d 696, 802 N.E.2d 1094). However, “a lack of prejudice to the State is an immaterial factor” in assessing compliance with such jurisdictional requirements ( Byrne v. State of New York, 104 A.D.2d 782, 784, 480 N.Y.S.2d 225 [1984], lv. denied 64 N.Y.2d 607, 488 N.Y.S.2d 1023, 477 N.E.2d 1107 [1985] [addressing jurisdictional filing requirements]; see also Wilson, 61 A.D.3d at 1368, 876 N.Y.S.2d 818). 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) ( Lepkowski, 1 N.Y.3d at 208, 770 N.Y.S.2d 696, 802 N.E.2d 1094; Cobin v. State of New York, 234 A.D.2d 498, 499, 651 N.Y.S.2d 202 [1996] ).

In assessing the adequacy of allegations regarding the place of accrual the gravamen of the claim is also relevant, in that specificity regarding the location of an incident can be of greater significance when a claim is based upon an alleged defect in a premises—particularly an outdoor setting—than when the cause of action is not dependent upon a dangerous condition. Thus, in Deep v. State of New York, 56 A.D.3d 1260, 867 N.Y.S.2d 833 (2008), a lack of detail regarding the exact location on a specified roadway where a multi-vehicle accident occurred was found not to be jurisdictionally defective, where the nature of the claim involved the State's operation of a vehicle, and the defendant could promptly investigate and assess its potential liability. In contrast, in Sheils v. State of New York, 249 A.D.2d 459, 671 N.Y.S.2d 519 (1998) a lack of detail within a notice of intention and claim regarding the exact location along a 1000–foot length of specified roadway in front of a church property where a pedestrian fell was held to be jurisdictionally defective, where the fall was attributed to a defect along the roadway ( see also Wilson, 61 A.D.3d 1367, 876 N.Y.S.2d 818 [notice of intention defective for failing to recite year of injury, and a particular road or place on such road where fall allegedly occurred]; Triani, 44 A.D.3d 1032, 845 N.Y.S.2d 81 [reversing Court of Claims' determination that description of accident site as the sidewalk abutting Kingsboro Hospital, at 681 Clarkson Avenue in Brooklyn, sufficiently described the place where a slip and fall occurred]; ⁴ Schneider v. State of New York, 234 A.D.2d 357, 650 N.Y.S.2d 798 [1996] [notice of intention and claim alleging trip and fall “in the picnic area adjacent to the parking area” at a specified State park with multiple picnic and parking areas jurisdictionally defective]; Cobin, 234 A.D.2d at 499, 651 N.Y.S.2d 202 [allegation within notice of intention that claimant tripped and fell “on the boardwalk at Jones Beach, County of Nassau, State of New York, in the East Quarter Circle, or its vicinity” jurisdictionally defective] ). I lastly note that Vargas v. State of New York, 83 A.D.3d 1525, 921 N.Y.S.2d 609 (2011), cited by Defendants herein, similarly affirmed the dismissal of a claim that was based upon the failure to recite the particular location along 4.7 miles of an identified roadway wherein claimed dangerous pavement allegedly caused a motorcyclist to crash, or the nature of the pavement defect involved.⁵

Here, the claim is similarly premised upon an alleged defect in an open setting, such that specificity in the description of the location of the incident is of heightened significance. When so viewed Claimants' efforts at complying with the jurisdictional “place where” requirement are clearly inadequate. Paul Uebelhoer, the New York State Department of Transportation (DOT) Assistant Resident Engineer for the Niagara County Residency—the county where the incident allegedly occurred—has reported on his knowledge that the State does not own or maintain a roadway identified as Upper Mountain Road Extension. Mr. Uebelhoer has further alleged that Claimants' description of the place of the accident did not initially help him determine its location, as he was unaware of a roadway bearing that name, and that it was only after he reviewed photographs that Claimants had provided to the Attorney General's Office that he was able to locate the reported accident site. By that point, early in 2009, the roadway had changed, as a result of a resurfacing project that had occurred several months earlier. Mr. Uebelhoer further confirmed that the area depicted within those photographs is not identified by the DOT under the name Upper Mountain Road Extension. I further note that in a deposition Theresa Y. Kelleher, a civil engineer assigned to highway maintenance in the DOT's Niagara County Residency at the time in issue, also denied having heard of the alleged accident location site referred to as the Upper Mountain Road Extension to Route 104 ( see Lonergan affidavit, exhibit I, page 23). Moreover, Kenneth Peters, an investigator employed by the New York State Department of Law, has averred on his knowledge that he traveled the entire length of Upper Mountain Road in Niagara County, from Lockport to Lewiston, and found no signage that referred to Upper Mountain Road Extension over that distance, which totaled approximately 20 miles. The investigator was unsuccessful in his efforts to locate a police accident report for the incident from any of five police agencies in Niagara County,⁶ and similarly reported that he was only able to locate the accident scene early in 2009, after Claimants tendered photographs to the Attorney General's Office.⁷ The misidentification of the name of...