Defendants' motion for summary judgment is granted and the claim is dismissed for claimant's failure to plead the location where the claim arose with sufficient specificity pursuant to Court of Claims Act § 11 (b).
|Claimant short name:||SHABAT|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK and CITY UNIVERSITY OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||By: Michael N. David, Esq.|
|Defendant's attorney:||Hon. Barbara D. Underwood, Attorney General
By: Suzette Corinne Merritt, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 25, 2018|
|See also (multicaptioned case)|
Claimant brings the instant action alleging damages as a result of defendants' negligence. Specifically, claimant alleges that she was injured on October 27, 2014 when her face came into contact with a glass door located on the campus of Brooklyn College (Verified Claim ¶¶ 5-7). Claimant served a notice of intention to file a claim on the Attorney General on January 21, 2015 (Affirmation of Suzette Corinne Merritt, AAG, Ex. A). Claimant also served a notice of intention to file a claim on defendant the City University of New York ("CUNY") on January 13, 2015 (Affidavit of Sophia Walsh-Newman ¶ 4). The verified claim in this action was filed on September 24, 2016 and served on the Attorney General on September 26, 2016 (Merritt Aff. ¶ 8). Defendants filed and served an answer on October 19, 2016 (Merritt Aff. ¶ 9). Defendants now bring the instant motion for summary judgment pursuant to CPLR 3212 and Court of Claims Act § 11 (b), on the ground that the claim is not sufficiently specific to comply with the jurisdictional requirements of Court of Claims Act § 11 (b) (Merritt Aff. ¶ 13). Claimant opposes the motion.
The sole issue set forth in defendants' motion for summary judgment is whether the statement of the location of where the claim arose is pleaded with sufficient specificity under Court of Claims Act § 11 (b). Claimant first identified the location of the accident as "the extreme right exit door on the street level, at Whitehead Hall, Brooklyn College . . ." (Notice of Intention to File a Claim ¶ 3). Counsel for claimant alleges that photographs of the exit door at issue were attached to the notice of intention to file a claim (Affirmation of Michael N. David, Esq. ¶ 6). Indeed, the notice of intention states that pictures are attached (Notice of Intention ¶ 3). However, defendants aver that the notice of intention to file a claim received by the Attorney General did not have any photographs attached to it. In support of this statement, defendants submit the affidavit of Min Chul Rhee, Legal Assistant 1 in the Claims Bureau in the New York City Office of the Attorney General. Mr. Rhee conducted a thorough search of the computer filing system maintained at the Attorney General's office (Reply Affirmation, Ex. B). The search produced two notices of intention--one received by personal service at the New York City Office of the Attorney General on January 13, 2015, and one received by personal service at CUNY Counsel's Office on January 21, 2015 (Rhee Aff. ¶ 4 [A], [B]). Each notice of intention located by Mr. Rhee consisted of two pages and both notices did not have any attached photographs (id.). Defendants also submit the affidavit of Sophia Walsh-Newman, a Higher Education Assistant-Paralegal in the Office of the General Counsel for CUNY (Reply Affirmation, Ex. A). Ms. Walsh-Newman also performed a search of her office's computer filing system and found that the notice of intention received by her office did not have any photographs attached (Walsh-Newman Aff. ¶ 4). The claim, which was filed and served approximately one year and eight months after the notice of intention to file a claim, states that the accident took place at Whitehead Hall on the Brooklyn College campus when "the [claimant's] face was caused to come into contact with the extreme right glass exit door on the street level" (Verified Claim ¶ 7). There are no photographs attached to the claim. On October 24, 2016, Crystal Combs, a Law Department Investigator II in the Claims Bureau of the Office of the Attorney General, went to Brooklyn College to take photographs of the set of doors located on the street level of the Whitehead Hall building (Affidavit of Crystal Combs ¶ 5). These photographs were produced to claimant during discovery, however claimant's counsel stated that he did not open and view the pictures because he assumed that they were the same photographs he allegedly attached to the notice of intention to file a claim (Affirmation in Opposition ¶ 9). The photographs clearly depict that the doors face a street (Merritt Aff., Ex. F). On September 15, 2017, during the deposition of claimant, counsel for defendants presented claimant with the photographs taken by Ms. Combs (Merritt Aff., Ex. H, p. 15-16). Counsel for defendants asked claimant if the doors depicted in the photographs were the doors involved in the accident (id. at p. 16). Claimant responded that they were not (id.). Following the deposition, counsel for claimant e-mailed to counsel for defendants the photographs of the doors involved in the incident that he had in his possession (Merritt Aff., Ex. I). The photographs clearly depict that the doors face an outer walkway, grassy area, and a building adjacent to the walkway and grassy area (id.). On September 20, 2017, Ms. Combs returned to Whitehead Hall on Brooklyn College's campus and took photographs of the doors identified by claimant at the deposition (Combs Aff. ¶ 5). The photographs clearly depict that the doors face the same walkway and grassy area depicted in the pictures e-mailed to counsel for defendants from counsel for claimant (Merritt Aff., Ex. G).
"Summary judgment is a drastic remedy that 'should not be granted where there is any doubt as to the existence of [triable] issues [of fact], or where the issue is arguable'" (Hall v Queensbury Union Free Sch. Dist., 147 AD3d 1249, 1250 [3d Dept. 2017], quoting Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 ; see Rotuba Extruders v Ceppos, 46 NY2d 223, 231 ; Stukas v Streiter, 83 AD3d 18, 23 [2d Dept. 2011]). The proponent of the motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., 68 NY2d 320, 324  [internal citations omitted]; see Zuckerman v City of New York, 49 NY2d 557, 562 ; Robinson v Kingston Hosp., 55 AD3d 1121, 1123 [3d Dept. 2008]). "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d at 324; see Town of Kirkwood v Ritter, 80 AD3d 944, 945-946 [3d Dept. 2011]). In considering the motion, the Court "must view the evidence in a light most favorable to the nonmoving party and accord that party the benefit of every reasonable inference from the record proof, without making any credibility determinations" (Black v Kohl's Dept. Stores, Inc., 80 AD3d 958, 959 [3d Dept. 2011]; see Winne v Town of Duanesburg, 86 AD3d 779, 780-781 [3d Dept. 2011]).
"The State's waiver of immunity from suits for money damages is not absolute, but rather is contingent upon a claimant's compliance with specific conditions placed on the waiver by the Legislature" (Lepkowski v State of New York, 1 NY3d 201, 206 ; see Court of Claims Act § 8; Alston v State of New York, 97 NY2d 159, 163 ). Moreover, "[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Matter of New York City Asbestos Litig., 24 NY3d 275, 281  [internal quotation marks and citations omitted]). As relevant here, Court of Claims Act § 11 (b) "places five specific substantive conditions upon the State's waiver of sovereign immunity by requiring the claim to specify (1) the nature of [the claim]; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries claimed to have been sustained; and (5) the total sum claimed" (Lepkowski v State of New York, 1 NY3d at 206 [internal quotation marks omitted]). "Absolute exactness is not required, but the claim must enable prompt investigation and be sufficiently specific to enable [a] defendant to reasonably infer the basis for its alleged liability" (Davila v State of New York, 140 AD3d 1415, 1416 [3d Dept. 2016] [internal quotation marks and citations omitted]; see Morra v State of New York, 107 AD3d 1115, 1115 [3d Dept. 2013]; Deep v State of New York, 56 AD3d 1260, 1261 [4th Dept. 2008]). However, defendants are not required "to ferret out or assemble information that section 11 (b) obligates the [movant] to allege" (Lepkowski v State of New York, 1 NY3d at 208).
Here, claimant's description of the place of the accident as the "the extreme right glass exit door on the street level" (Verified Claim ¶ 7), is "insufficient to permit defendant to investigate its liability" (Sommer v State of New York, 131 AD3d 757, 758 [3d Dept. 2015]; see Sega v State of New York, 246 AD2d 753, 755 [3d Dept. 1998], lv denied 92 NY2d 805 ; Wilson v State of New York, 35 Misc 3d 227, 232-233 [Ct Cl 2011]). Defendants state that there are several sets of doors in Whitehead Hall and two sets of doors in both the front and back of the building. The set installed in the front of the building is on the ground level and leads to the street in front of the building (Merritt Aff., Ex. F). The set of doors in the back of the building leads to a grassy area on Brooklyn College's campus (Merritt Aff., Ex. G). Claimant's identification of the accident site as "the extreme right glass exit door on the street level" (Verified Claim ¶ 7) is inadequate, especially considering that claimant stated at her deposition that the door in question does not actually face the street, despite the claim referring to the door as on the "street level" (see Merritt Aff. Ex. H, p. 16). Claimant argues that the description of the doors is accurate "when taken in conjunction with the photographs [attached to the notice of intention]" (Affirmation in Opposition ¶ 16). However, the affidavits of Min Chul Rhee and Sophia Walsh-Newman establish that no photographs were attached to the notices of intention served on both the Attorney General and CUNY Counsel's Office (Reply Affirmation, Exs. A, B).(1) Thus, claimant's description of the location of the accident was not specific enough "so as not to mislead, deceive, or prejudice the rights of the State" (Wharton v City Univ. of New York, 287 AD2d 559, 560 [2d Dept. 2001] [citation omitted]). Claimant also argues that the description of the location is sufficiently specific because there are only two sets of doors in the building, each on the "street level" (Affirmation in Opposition ¶ 18). However, strict compliance with the Court of Claims Act is necessary to confer jurisdiction in this Court (see Long v State of New York, 7 NY3d 269, 276 ), and where a claim begets confusion as to the location of the accident, the number of possible locations implied by the claim is irrelevant (see Triani v State of New York, 44 AD3d 1032, 1033 [2d Dept. 2007] [finding that the claim's description of the location of the accident as "the sidewalk abutting Kingsboro Hospital at 681 Clarkson Avenue in Brooklyn" was not sufficiently specific under Court of Claims Act § 11 (b)], revg Triani v State of New York, 2006 WL 6067589 [Ct Cl, Aug. 30, 2006, No. 112028]; Alpert v State of New York, UID No. 2017-040-027 [Ct Cl, McCarthy, J., Mar. 1, 2017] [finding that the claim failed to set forth the place where the claim arose where there were two staircases in the subject building and claimant failed to identify the staircase where the accident occurred]; see also Wilson v State of New York, 35 Misc 3d 227, 231-232 [Ct Cl 2011]; Liberty Mut. Ins. Co. v State of New York, 30 Misc 3d 693 [Ct Cl 2010]; Peeples-Polk v State of New York, UID No. 2010-034-527 [Ct Cl, Hudson, J., June 29, 2010]).
Lastly, claimant argues that defendants have not demonstrated that the ability to investigate the claim has been significantly impaired (Affirmation in Opposition ¶ 19). However, "a lack of prejudice to [defendants] is an immaterial factor" when considering whether claimant has complied with the jurisdictional requirements of Court of Claims Act § 11 (b) (Byrne v State of New York, 104 AD2d 782, 784 [2d Dept. 1984], appeal denied 64 NY2d 607 ). In any case, defendants submitted an affidavit from their investigator stating that the misidentification of the door involved in the accident impeded the investigation of the claim (see Combs Aff. ¶ 7).
In conclusion, the Court notes that the requirements of Court of Claims Act § 11 (b) are mandatory pleading requirements that are "substantive conditions upon the State's waiver of sovereign immunity" and the failure to comply results in the claim being jurisdictionally defective (Lepkowski v State of New York, 1 NY3d at 207; Kolnacki v State of New York, 8 NY3d 277, 281 ). Such a defect cannot be waived and may be raised at any time, even sua sponte (Green v State of New York, 90 AD3d 1577, 1578 [4th Dept. 2011]; Czynski v State of New York, 53 AD3d 881 [3d Dept. 2008]). Accordingly, the Court is constrained to find that the claim is jurisdictionally defective for its failure to comply with Court of Claims Act § 11 (b).
Based upon the foregoing, it is hereby
ORDERED that defendants' motion for summary judgment (M-91584) is granted and claim number 128591 is dismissed.
June 25, 2018
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion for Summary Judgment, dated December 13, 2017; and Affirmation in Support of Motion, affirmed by Suzette Corinne Merritt, AAG on December 13, 2017, with Exhibits A through I annexed thereto.
2. Affirmation in Opposition, affirmed by Michael N. David, Esq. on January 15, 2018, with Exhibit A annexed thereto.
3. Reply Affirmation, affirmed by Suzette Corinne Merritt, AAG on January 22, 2018, with Exhibits A and B annexed thereto.
4. Sur-Reply Affirmation in Opposition, affirmed by Michael N. David, Esq. on January 25, 2018.
1. On January 26, 2018, claimant e-filed a sur-reply to defendants' reply affirmation. Although the filing and service of a sur-reply is "an unnecessary and unauthorized elaboration of motion practice" (Scherrer v Time Equities, 218 AD2d 116, 121 [1st Dept. 1995], abrogated on other grounds by Matter of New York County DES Litig., 89 NY2d 506  [citation omitted]), the Court notes that the averments therein would not change the Court's decision. Specifically, claimant alleges that defendants should have notified claimant's counsel that the notice of intention did not have any photographs attached despite referencing photographs. Contrary to claimant's allegation, defendants were under no obligation to seek specification of the location of the incident (see Lepkowski v State of New York, 1 NY3d at 208).