Defendant's motion to dismiss the claim was granted on the ground claimant failed to adequately allege the "place" where her fall occurred as required by Court of Claims Act § 11 (b).
|Claimant short name:||KATAN|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Law Offices of Dean C. Schneller
By: Dean C. Schneller, Esq.
|Defendant's attorney:||Honorable Eric T. Schneiderman, Attorney General
By: Paul F. Cagino, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 2, 2018|
|See also (multicaptioned case)|
Defendant moves for dismissal pursuant to CPLR 3211 (a) (2) and (7) on the ground the claim fails to meet the pleading requirements of Court of Claims Act § 11 (b).
Claimant seeks damages for personal injuries allegedly sustained in a trip and fall accident which occurred on September 14, 2017 at the State University of New York campus in Plattsburgh, New York. Defendant contends in support of its motion that the claim fails to meet the pleading requirements of Court of Claims Act § 11 (b) because it does not sufficiently set forth the place where the accident occurred.
The claim states that the claimant's accident took place on "the exterior stairs/landing located proximate to Moffit Hall and Clinton Dining Hall" (defendant's Exhibit A, p.1, par. beginning "The claim arose . . ."). The place of the accident is also referenced in that portion of the claim describing the manner in which the accident occurred, which indicates that claimant was a student residing on campus when "she was walking down a stair case located proximate to Moffit Hall and Clinton Dining Hall when she tripped and fell and suffered . . . a fractured left foot/ankle" (id., pp. 1-2).
Court of Claims Act § 11(b) places five specific substantive conditions upon the defendant's waiver of sovereign immunity by requiring that a claim specify "the time when and the place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and . . . the total sum claimed" (Court of Claims Act § 11 [b]). These requirements are "strictly construed" (Kolnacki v State of New York, 8 NY3d 277, 280 ; rearg denied 8 NY3d 994 ) and the defendant is not required "to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski v State of New York, 1 NY3d 201, 208 ; see also Dixon v State of New York, 153 AD3d 1529 [3d Dept 2017], appeal dismissed ___NY3d ___, 2018 WL 793334 ; Hargrove v State of New York, 138 AD3d 777, 778 [2d Dept 2016], [the State is not required to go beyond a claim in order to ascertain information which should be provided pursuant to Court of Claims Act § 11]). The guiding principle in determining the sufficiency of the claim is whether it is sufficiently definite " 'to enable the State . . . to investigate the claim promptly and to ascertain its liability under the circumstances' " (Lepkowski, 1 NY3d at 207, quoting Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]).
In support of its dismissal motion, defendant submits the affidavit of Josee Larochelle, Vice President for Administration and Finance at SUNY Plattsburgh. Ms. Larochelle states that as Vice President for Administration and Finance, she is familiar with the college campus and "personally visited the exterior area located proximate to Moffit Hall and Clinton Dining Hall . . ., and it is within my knowledge that there are three separate staircases in said exterior area" (defendant's Exhibit B, ¶ 2). She states further that based upon the description of the place of the accident contained in the claim "it is impossible to determine the situs of claimant's fall" (id. at ¶ 3).
Given the nature of the claim and the number of staircases that are "proximate" to Moffit Hall and Clinton Dining Hall, the Court agrees that the place of the accident is insufficiently described to enable the defendant to determine the situs of the accident and assess its liability (see Sommer v State of New York, 131 AD3d 757 [3d Dept 2015] [notice of intention alleging that claimant slipped and fell on ice on a sidewalk "on the campus of the State University of Oneonta" was insufficient to extend the time to serve and file a claim]; Wilson v State of New York, 61 AD3d 1367 [4th Dept 2009] [vague and contradictory description of the place of the accident made it impossible for the defendant to determine the situs of the fall]; Shiels v State of New York, 249 AD2d 459 [2d Dept 1998] [place of accident, described in both the notice of intention and the claim as having occurred "while the injured claimant was walking across Route 112/25A in front of the Infant Jesus Church, in Port Jefferson" was insufficient and the photographs attached to the notices were too vague to determine where along the 1000-foot frontage the claimant fell]; Schneider v State of New York, 234 AD2d 357 [2d Dept 1996] [notice of intention and claim alleging claimant slipped and fell "in the picnic area adjacent to the parking area" at Heckscher State Park were insufficient where there were several picnic areas in the park]; Riefler v State of New York, 228 AD2d 1000 [3d Dept 1996] [vague and contradictory description of the accident scene made it impossible for the State to determine the location of claimant's fall]).
Claimant, in her affidavit, acknowledges the existence of three stairways in the area between Moffit Hall and the Clinton Dining Hall. While claimant contends that only one of the three staircases in the area included a landing between stairs, nowhere in the claim is it alleged that the accident occurred on a landing between stairs. Rather, the claim alleged the accident occurred "on exterior stairs/landing located proximate to" the two buildings. All staircases have landings and nothing in the claim would provide notice to the State that the accident occurred on a landing between two staircases. Nor does the claim allege that the incident occurred on a stairway located between the two buildings, only "proximate" thereto. The instant matter is unlike the facts in Acee v State of New York (81 AD3d 1410, 1411 [4th Dept 2011]), where sufficient information was alleged to permit the defendant to identify the place of the trip and fall accident despite the erroneous allegation in the claim that it occurred in a parking lot rather than a road. Here, nothing in the instant claim identifies the particular staircase where the claimant's accident occurred. Nor is this a situation in which the defendant performed an investigation and is the primary or sole source of information upon which the claim is based (cf. Davila v State of New York, 140 AD3d 1415 [3d Dept 2016]). Inasmuch as the State is not required to go beyond a claim in order to ascertain information that should have been provided pursuant to Court of Claims Act § 11 (b), the claim is jurisdictionally defective and must be dismissed (Hargrove, 138 AD3d at 778; Morra v State of New York, 107 AD3d 1115, 1116 [3d Dept 2013]; Dinerman v NYS Lottery, 69 AD3d 1145, 1146 , lv dismissed 15 NY3d 911 ; Nasir v State of New York, 41 AD3d 677 [2d Dept 2007]; Mujica v State of New York, 24 AD3d 898 [3d Dept 2005], lv denied 7 NY3d 701 ).
Based on the foregoing, defendant's motion is granted and the claim is dismissed.
March 2, 2018
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims