Movant's motion seeking permission to treat the notice of intention as a claim is granted. The notice of intention contains sufficient facts to constitute a claim, and defendant would not be prejudiced by the Court's granting of movant's application.
|Claimant short name:||SINGH|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Grey & Grey, LLP
By: Evelyn F. Gross, Esq.
|Defendant's attorney:||Hon. Eric T. Schneiderman, NYS Attorney General
By: Nicole M. Procida, Assistant Attorney General,
|Third-party defendant's attorney:|
|Signature date:||March 26, 2018|
|See also (multicaptioned case)|
Movant seeks permission to treat the notice of intention to file a claim served by movant upon the Attorney General on December 17, 2014 as a claim pursuant to Court of Claims Act § 10 (8) (a).(1) The notice of intention alleges that defendant was negligent in failing to maintain a portion of the Van Wyck Expressway, causing movant to lose control of his vehicle and crash into sand-filled containers, barriers and other obstructions on the roadway. The notice of intention further states that movant was struck by a vehicle after exiting his car following the accident. In the alternative, movant seeks permission to file a late claim pursuant to Court of Claims Act § 10 (6).
The Court will first address movant's request to treat the notice of intention as a claim pursuant to Court of Claims Act § 10 (8) (a). Court of Claims Act § 10 (8) (a) states that:
"A claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The Court shall not grant such application unless: it is made upon motion before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant."
First, the Court finds that the application to treat the notice of intention as a claim was made before the expiration of the statute of limitations contained in CPLR Article 2. CPLR 214 requires that actions alleging damages for personal injury or injury to property be asserted within three years of the date of accrual. Here, movant sustained injuries on October 11, 2014. Movant's motion seeking to treat the notice of intention as a claim was filed and served on October 2, 2017. Thus, the motion is timely pursuant to CPLR Article 2.
Next, the Court must determine if the notice of intention was timely served. Court of Claims Act § 10 (3) requires that a notice of intention alleging negligence of an officer or employee of the State be served within 90 days after the accrual of the claim. Here, the claim accrued on October 11, 2014. Accordingly, movant was required to serve the notice of intention by January 9, 2015. Here, movant states that he served the notice of intention on December 17, 2014 and December 19, 2014. Defendant avers that it received the notice of intention on December 4, 2014. Although movant and defendant allege incongruous dates regarding service of the notice of intention, service would be timely using either date.
The Court must now determine whether the facts contained in the notice of intention are sufficient to constitute a claim. The purpose of the notice of intention is to provide the State with adequate information to investigate the claim (Morris v State of New York, 27 AD3d 282, 283 [1st Dept. 2006]), and to ascertain its liability under the circumstances (Wharton v City Univ. of New York, 287 AD2d 559, 559 [2d Dept. 2001]). A notice of intention must "state the time when and place where such claim arose, the nature of same, [and] the items of damage or injuries claimed to have been sustained" (Court of Claims Act § 11 [b]). Here, the notice of intention states that the accident occurred "[a]t approximately 6:00 a.m. on October 11, 2014, while [movant] was operating a motor vehicle on Van Wyck Expressway in a southbound direction at, near or one [sic] Exit 5, an exit for Atlantic Avenue" (Notice of Intention ¶ 3). The notice of intention goes on to state that movant was caused to lose control of his vehicle and struck sand-filled containers, barricades, cones and other obstructions improperly placed in the area; that the area was improperly lit, signed and marked; and that there were obstructions in the road in an unsafe, hazardous and dangerous location. Movant alleges that the accident was caused by the negligence, recklessness, and carelessness of the Department of Transportation in the ownership, operation, control, design, maintenance and upkeep of the area; and that the Department of Transportation created and maintained the roadway in an unsafe condition. Lastly, the notice of intention specifies that the accident caused movant to sustain multiple bodily injuries including a pelvis fracture and fractures to both legs requiring surgery. Thus, the Court finds that the notice of intention meets all the requirements Court of Claims Act § 11 (b) (see Davila v State of New York, 140 AD3d 1415, 1416 [3d Dept. 2016]; Morris v State of New York, 27 AD3d 282, 283 [1st Dept. 2006]).
Defendant argues that the notice of intention does not assert a theory of liability against the State because it names only the City of New York and the Department of Transportation. The Court disagrees. Although the State of New York is not named in the body of the notice of intention, the State of New York is the only party named in the caption of the notice of intention. In cases where an entity has been properly served with a pleading, but omitted from the caption, courts have found that the error may be treated as a mere irregularity (see Ibekweh v State of New York, 157 Misc 2d 710, 710 [Ct Cl 1993]; Schwartzberg v State of New York, 121 Misc 2d 1095, 1097 [Ct Cl 1983]). The Court recognizes that the instant matter is different from a case where a proper defendant is omitted from the caption of a pleading in that here the proper defendant is missing from the body of the notice of intention. However, the Court's essential inquiry in a case where a party is improperly omitted from any section of the pleading is whether the pleading enables the defendant to "receive adequate notice of the commencement of the proceeding" and whether the Court's granting of relief would prejudice a substantial right of the defendant (Martino v New York State Thruway Auth., 154 Misc 2d 905, 911 [Ct Cl 1992] [holding that a claimant's failure to name the proper state entity in the body of the pleading is not fatal to the Court's jurisdiction over the claim where the defendant had notice of the essential facts constituting the claim]). The Court finds that, in this instance, the State did receive adequate notice of the claim. First, it is undisputed that the notice of intention was properly served on defendant. Second, the Department of Transportation is an agency of New York State, and allegations against the State can be inferred from allegations against DOT (see Heisler v State of New York, 78 AD2d 767, 768 [4th Dept. 1980]; Smith v State of New York, UID No. 2017-040-061 [Ct Cl, McCarthy, J., June 6, 2017]; Buonato v State of New York, UID No. 2017-040-058 [Ct Cl, McCarthy, J., May 23, 2017]; Torres v State of New York, UID No. 2016-032-160 [Ct Cl, Hard, J., Dec. 19, 2016]). Defendant argues that the use of the term "Department of Transportation" is misleading because it does not indicate whether movant refers to the City of New York Department of Transportation or the State of New York Department of Transportation (Affirmation in Opposition ¶ 7). However, the Van Wyck Expressway is an arterial highway and "[g]enerally, for arterial highways within the City of New York, 'the City is jointly responsible with the State for the safety of [the] arterial highway'" Contractor v State of New York, UID No. 2012-016-059 [Ct Cl, Marin, J., Dec. 4, 2012]), quoting Gregorio v City of New York, 246 AD2d 275, 279 (1st Dept. 1998) [additional citations omitted]). Accordingly, movant's identification of the location of the accident as the Van Wyck Expressway should have put defendant on notice as to its potential liability (Heisler v State of New York, 78 AD2d at 768), and the Court finds that the essential facts set forth in the notice of intention are sufficient to constitute a claim.
Having found that the notice of intention contains sufficient facts to constitute a claim, the Court must determine whether the Court's granting of the application would prejudice defendant. First, the Court notes that "it is inherently the circumstance in an application made for relief under § 10 (8) (a) that the prospect of finding prejudice is less tenable if other § 10 (8) (a) factors (discussed, supra) are found in [movant's] favor" (Giambattista v State of New York, UID No. 2013-050-018 [Ct Cl, Lynch, J., Feb. 19, 2013]). Because the Court has already found that defendant had sufficient notice of the essential facts constituting the claim, it would be difficult for the Court to also find that defendant would be prejudiced if the Court were to grant movant's requested relief. Although defendant argues that the accident occurred nearly three years ago, and that the construction taking place at the accident site was temporary in nature, defendant does not state exactly how it would be prejudiced if the Court were to grant the requested relief. Where a notice of intention is properly served, as is the case here, the Court of Claims Act allows a claimant two years from the accrual date to file a claim (Court of Claims Act § 10 ). Defendant does not explain, and the Court cannot discern, how defendant would be prejudiced if the claim were filed three years after the accrual date, as opposed to two years after the accrual date. Tellingly, DOT contacted its insurance underwriter on January 9, 2015--only three months after the accident--asking that the insurance underwriter contact the Office of the Attorney General to coordinate a defense of the claim (Movant's Reply Affirmation, Exhibit B). That letter attached the notice of intention and stated that the claim would be returnable in the Court of Claims. The letter clearly indicates that the State was on notice of the essential facts of the claim at that time. Accordingly, the Court finds that defendant would not be prejudiced by the Court's granting of relief to movant pursuant to Court of Claims Act § 10 (8) (a).
Based upon the foregoing, it is hereby
ORDERED that movant's motion seeking permission to treat the notice of intention served on December 17, 2014 as a claim pursuant to Court of Claims Act § 10 (8) (a) is granted, and the notice of intention is deemed the claim herein; and movant's remaining requests for relief are denied as moot; and it is further
ORDERED that claimant shall file the notice of intention served on December 17, 2014 within thirty (30) days of the filing date of this Decision and Order in compliance with Court of Claims Act § 11-a and the Uniform Rules for the Court of Claims; and it is further
ORDERED that defendant shall serve and file its answer within forty (40) days of the filing of this Decision and Order.
March 26, 2018
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion, dated September 29, 2017; and Affirmation in Support of Motion, affirmed by Evelyn F. Gross, Esq. on September 29, 2017, with Exhibits A through J annexed thereto.
2. Affirmation in Opposition, affirmed by Nicole M. Procida, AAG on November 13, 2017, with Exhibit 1 annexed thereto.
3. Reply Affirmation, affirmed by Evelyn F. Gross, Esq. on December 14, 2017, with Exhibits A through D annexed thereto.
1. The Attorney General avers that the notice of intention was served on December 4, 2014 (Affirmation in Opposition ¶ 3). Movant avers that the notice of intention was served on the Attorney General at his offices located in both New York, New York and Albany, New York on December 17, 2014 and December 19, 2014, respectively (Affirmation in Support of Motion ¶ 15; Ex. A). The Court notes that timeliness of the service of the notice of intention is not in dispute. Thus, the discrepancy is inconsequential.