New York State Court of Claims

New York State Court of Claims
KANOF v. THE STATE OF NEW YORK, # 2017-029-081, Claim No. 126349, Motion No. M-91220


The claim alleges that a pedestrian tripped and fell on a defective sidewalk/curb of a parking lot at SUNY Purchase on October 10, 2014. After trial was scheduled, defendant moved to dismiss the claim based on the court's lack of subject matter jurisdiction, arguing that the description of the location where claimant fell did not meet the specificity requirements of Court of Claims Act 11(b). The court denied the motion, finding that defendant failed to show it was unable to conduct a meaningful investigation based on the more detailed information contained in the timely served notice of intention.

Case information

UID: 2017-029-081
Claimant(s): BEVERLY KANOF
Claimant short name: KANOF
Footnote (claimant name) :
Footnote (defendant name) : The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 126349
Motion number(s): M-91220
Cross-motion number(s):
Claimant's attorney: SUBIN ASSOCIATES, LLP
By: Jillian Rosen, Esq.
By: Rachel Zaffrann, Assistant Attorney General
Third-party defendant's attorney:
Signature date: November 21, 2017
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


The claim arose on October 10, 2014 when claimant allegedly tripped and fell on a defective sidewalk/curb at the State University of New York Purchase and sustained physical injuries. As defendant concedes (Zaffrann Aff., 4),(2) on January 6, 2015, claimant served a notice of intention to file a claim on the Attorney General. The verified claim was served on July 14, 2015, and filed on June 25, 2015. Defendant filed a verified answer on August 18, 2015. After several stipulated extensions of time, claimant filed a note of issue and a certificate of readiness on June 22, 2017. In a correspondence dated August 10, 2017, the court notified the parties that the claim was scheduled for trial on December 12, 2017. On October 13, 2017, defendant filed a motion to dismiss, arguing that the court lacks subject matter jurisdiction because the claim "fails to adequately describe the location of the subject incident" as required by Court of Claims Act 11(b). Claimant opposes.

Court of Claims Act 11(b) requires that a notice of intention "shall state the time when and place where such claim arose [and] the nature of same." Sufficiency under Court of Claims Act 11(b) is subject to strict scrutiny as sections 10 and 11 of the act are jurisdictional (see Lepkowski v State of New York, 1 NY3d 201, 207 [2003]; see also Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992] [discussing the State's limited waiver of immunity as codified by the jurisdictional requirements of the Court of Claims Act]). Defendant "is not required to go beyond the claim or notice of intention in order to be able to investigate an occurrence or to obtain information necessary for such an investigation to occur" (Lepkowski at 208, citing to Cobin v State of New York, 234 AD2d 498, 499 [2d Dept 1996], lv dismissed 90 NY2d 925 [2007], rearg denied 91 NY2d 849 [2007]). While the statute does not require "absolute exactness," it does require a statement made "with sufficient definiteness to enable the State to investigate the claim promptly and to ascertain its liability under the circumstances" (Lepkowski at 207, quoting Heisler v State of New York, 78 AD2d 767 [4th Dept 1980]; see Triani v State of New York, 44 AD3d 1032, 1032 [2d Dept 2007]).

"When a defendant contends that a claim [or notice of intention] falls short of this standard, it is incumbent upon the defendant to demonstrate that it was unable to conduct an investigation based upon the information that was provided" (Smith v State of New York, 25 Misc 3d 1216[A] [Ct Cl 2006], citing Cannon v State of New York, 163 Misc 2d 623, 622 [Ct Cl 1994]). Judge Patti of this court found in Yanus v State of New York, Misc 3d 361 [Ct Cl 2011], that these and other decisions in the Court of Claims conflicted with Fourth Department case law providing that prejudice is immaterial to determining whether the court has subject matter jurisdiction if the notice of intention or the claim is deficient under 11(b) (see e.g.Wilson v State of New York, 61 AD3d 1367 [4th Dept 2011] [finding notice of intention deficient]).

In Yanus, the claim was deficient under section 11(b) yet the defendant investigated, engaged in discovery, and then made a motion to dismiss for lack of jurisdiction. Unlike the case here, there was no mention of a prior, sufficient notice of intention having been served. Under such circumstances, this court agrees with Judge Patti. Lack of prejudice does not replace lack of compliance with the jurisdictional requirements of the Court of Claims Act. However, it is not inconsistent to place the burden on defendant to show the notice or claim does not comply with the statute, or to consider defendant's ability to investigate, based on the information provided by claimant, as evidence that the notice or claim is sufficient under the statute.

The motion addresses only the claim, which the court agrees contains an inadequate description of the location. The pleading alleges that claimant fell "at the State University of New York Purchase Parking Lot W2, more specifically at the sidewalk/curb located at 735 Anderson Hill Road, Purchase, New York" (Claim, 3). Without more, this description is plainly inadequate. Defendant's motion is supported by an "Affirmation" of Steven Dorso, the Associate Director of Facilities Management at Purchase, who attests that the W2 Parking Lot has 850 parking spots, and "approximately 250 feet of curbing that separates the surface of the W2 parking lot from the sidewalk" (Dorsey Aff., 5-7). Although the claim refers to "annexed photographs," the Assistant Attorney General attests that no photographs were served with the claim, and none are attached to the stamped copy of the claim submitted with the motion (Zaffrann Aff., 5, Exh. A).(3)

The paltry description of the incident location did not contain enough information for defendant to investigate without going beyond the claim. If the inquiry were to end there, the motion would be granted and the claim dismissed for lack of jurisdiction. But the jurisdictional analysis is incomplete without first reviewing the adequacy of claimant's notice of intention (see Gonzalez v State of New York, 25 Misc 3d 1216[A] [Ct Cl 2006], affd on other grounds 60 AD3d 1193 [3d Dept 2009], lv denied 13 NY3d 712 [2009]). In several actions, the Court of Claims has denied motions to dismiss claims on the ground that a timely and properly served notice of intention that complies with the pleading requirements of Court of Claims Act 11(b) is sufficient for the court to obtain jurisdiction over the State (see id. [denying cross-motion to dismiss claim with deficient description of location under Court of Claims Act 11[b], where description in notice of intention complied with the statute]; citing Peralta v State of New York, UID No. 2004-030-902 [Ct Cl, Scuccimarra, J., Feb. 10, 2004] [finding that claim's omission of complete description of location was "a minor, non-jurisdictional, pleading error" that could be remedied by amendment where notice of intention contained enough information to invoke the court's jurisdiction]).

As Presiding Judge Sise explained in Gonzalez,

"[A] claimant who complies with the requirements of section 11(a) relating to time and manner of service and who provides, in a timely manner, all of the substantive information required by section 11(b) in his or her notice of intention has properly invoked the jurisdiction of the Court. The purpose of the substantive content requirements of section 11(b) has been met when the State is given, in a timely fashion, sufficient information to allow it to conduct an investigation of the underlying events. If the claim that is filed and served sometime later does not contain all of the required information, that defect does not have jurisdictional implications because it has no impact on the State's ability to investigate or its knowledge of the allegations against it."

(Gonzalez v State of New York, 25 Misc 3d 1216[A]).

The Assistant Attorney General erroneously argues that the law in New York is otherwise. Defendant's reliance on Hodge v State of New York, 213 AD2d 766 (3d Dept 1995), app. dismissed 87 NY2d 968 (1996), is misplaced. In Hodge, the Third Department concluded that improper service of the claim deprived the court of personal jurisdiction over the State. Defendant is not arguing that the court lacks personal jurisdiction because the claim was improperly served, rather that the claim did not provide a sufficient description of the location enabling it to investigate the incident.(4)

A notice of intention is not to be scrutinized as strictly as a claim. It is sufficient if it "provides the State with fair and timely notice of those facts necessary to conduct a meaningful investigation" (Cannon v State of New York, 163 Misc 3d 623 [Ct Cl 1994]). The "guiding principle" of the pleading requirement of section 11(b) is that notices of intention (if provided), and claims, must contain a description of the location that is sufficient to enable defendant to promptly investigate the incident (see Lepkowski at 207). The notice of intention served on the Attorney General described the accident location as "on [the] sidewalk between The Performing Arts Center and the Music Building at or about the SUNY Purchase College Campus, parking lot 'W2' " and refers to annexed photographs. The area described is limited to that portion of the sidewalk between two identified buildings, and the attached photographs show a small portion of cracked and broken curbing attached to a portion of sidewalk immediately adjacent to a handicapped parking spot and identifiable structures nearby in close proximity to trees. This is sufficient under the statute (see Acee v State of New York, 81 AD3d 1410, 1411 [4th Dept 2011] [court found as sufficient a description stating that claimant fell at a correctional facility in its parking lot by reason of broken pavement, near gate to entrance, although it was later determined that claimant fell on perimeter road, which encircled facility; parking lot with handicapped area where claimant parked was adjacent to and contiguous with the road]).

Defendant has not shown that it was unable to conduct a meaningful investigation based on the information contained in claimant's notice of intention. Defendant's own actions suggest that the notice of intention provided enough information to conduct a meaningful investigation (see Gonzalez v State of New York, 25 Misc 3d 1216[A] [considering defendant's actions in determining sufficiency of notice of intention]). Defendant concedes that the notice was served, and does not dispute that it was served timely and properly. The motion seeks dismissal of only the claim, and in its answer, defendant's fifth affirmative defense challenges the section 11(b) sufficiency of only the claim, indicating defendant considered the notice of intention to be sufficient. Otherwise, defendant could have sought dismissal of the notice of intention, rendering the claim untimely and divesting the court of jurisdiction. Additionally, as was the case in Gonzalez, both parties have appeared, agreed on a discovery schedule, engaged in substantial discovery, including document production and several depositions, and they have retained experts and exchanged CPLR 3101(d) expert responses. A note of issue and a certificate of readiness were filed on June 22, 2107. Most recently, counsel for both parties appeared at the pre-trial conference on November 17, 2017.

Accordingly, defendant's motion to dismiss is denied.

November 21, 2017

White Plains, New York


Judge of the Court of Claims

Papers considered:

Notice of motion, Affirmation in Support and Exhibits

Affirmation in Opposition and Exhibits

Reply Affirmation

2. "Zaffrann Aff." refers to the Affirmation of Assistant Attorney General Rachel Zaffrann.

3. There were no photographs submitted to the court with the claim when it was filed.

4. If the purpose of the statute has been met with a notice of intention, then finding the subsequent claim jurisdictionally defective because it does not also comply ignores the purpose of the pleading requirement, as well as the statutory scheme. A notice of intention extends the time to file and serve a claim by up to two years (Court of Claims Act 10), giving defendant an opportunity to investigate the allegations before the legal action begins. As Judge Scuccimarra held in Peralta v State of New York, under similar circumstances, "the failure to have included the complete description of the location in the claim is a minor, non-jurisdictional, pleading error."