Defendant's motion to dismiss the claim for non-compliance with the pleading requirements of Court of Claims Act. § 11 (b) granted. Claim was devoid of factual allegations as to the nature of the claim against the State of New York.
|Claimant(s):||TINA LISSETTE JONES, as Administratrix of the Estate of JEREME NATHAN JONES, deceased|
|Claimant short name:||JONES|
|Footnote (claimant name) :|
|Defendant(s):||NEW YORK STATE DEPARTMENT OF TRANSPORTATION and THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||CONWAY & KIRBY, PLLC
By: Peter A. McDaniel, Esq.
|Defendant's attorney:||BARBARA D. UNDERWOOD, Attorney General
of the State of New York
By: Paul F. Cagino, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 24, 2018|
|See also (multicaptioned case)|
Claimant filed this claim as administratrix of the estate of Jereme Nathan Jones, seeking damages for pain and suffering and wrongful death of claimant's decedent as the result of a motor vehicle accident in the Town of Cairo in Greene County on September 30, 2015. Defendant moves in lieu of answer to dismiss the claim on the ground that the Court lacks jurisdiction over the claim because it is not an actual claim, and that the pleading fails to comply with Court of Claims Act § 11 (b). Claimant opposes the motion.
The Court of Claims Act requires that "[t]he claim shall 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 and. . . the total sum claimed" (Court of Claims Act § 11 [b] [emphasis added]). To satisfy the "nature of the claim" requirement, the claim must state facts that are sufficiently definite " 'to enable the State . . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances' " (Lepkowski v State of New York, 1 NY3d 201, 207 , quoting Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]). "Although absolute exactness is not required the claim must provide a sufficiently detailed description of the particulars of the claim . . . [and] defendant is not required to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Morra v State of New York, 107 AD3d 1115, 1115-1116 [3d Dept 2013] [internal quotations and citations omitted]). The "nature of the claim" requirement is not satisfied by conclusory or general assertions of negligence without factual allegations that reveal some act or omission that would give rise to defendant's liability (see Grumet v State of New York, 256 AD2d 441 [2d Dept 1998] [claim for slip and fall alleged that defendant was "careless, reckless and negligent"]; Tamez v New York State Thruway Auth. and State of New York, UID No. 2007-015-213 [Ct Cl, Collins, J., July 10, 2007] [mere allegation of negligence insufficient to satisfy Court of Claims Act § 11 (b)]; see also Karen's Produce v State of New York and New York State Canal Corp., UID No. 2012-048-071 [Ct Cl, Bruening, J., Nov. 8, 2012] [proposed claim alleged negligence in oversight, operation, maintenance and/or design of the Erie Canal System and associated structures and waterways, but did "not allege any specific acts or omissions that caused (claimants') damage"]; Davis v State of New York, UID No. 2004-016-071 [Ct Cl, Marin, J., Nov. 19, 2004] [proposed claim that merely referred to accident and made general allegations of negligence did not satisfy Court of Claims Act § 11 (b)]; Alexandrov v New York State Canal Corp., UID No. 2013-038-566 [Ct Cl, DeBow, J., Nov. 4, 2013] [claim alleging only negligence without any facts regarding defendant's potential liability failed to satisfy Court of Claims Act § 11 (b)]). The failure to comply with the pleading requirements of Court of Claims Act § 11 (b) is a fatal defect in subject matter jurisdiction that requires dismissal of the claim (see Lepkowski, at 209; Kolnacki v State of New York, 8 NY3d 277, 281 ).
The claim is denominated as a "Verified Notice of Claim" and it states that it is brought "pursuant to General Municipal Law [GML] § 50-e" (Claim number 129890, Opening Paragraph). The claim alleges that it "arose out of a motor vehicle accident that occurred on September 30, 2015 at or around 12:35 P.M. on Route 32 at its intersection with Silver Spur Rd. E. in the Town of Cairo, County of Greene" (id.,), and references an appended copy of the Police Accident Report of the accident (id., ¶ 4). The Police Accident Report indicates that two drivers, claimant's decedent and Kevin J. Decker, were involved in an accident that occurred on September 30, 2015 at 12:35 p.m., and it describes the accident as follows:
"[Decedent's vehicle] traveling west bound on Silver Spur Rd E in the Town of Cairo and approaching the intersection with State Route 32. [Decker's vehicle] traveling south bound on State Route 32 in the Town of Cairo and approaching the intersection with Silver Spur Rd. Silver Spur Rd E has a flashing red light and stop sign at the intersection with State Route 32. State Route 32 has a flashing yellow light at the intersection with Silver Spur Rd. [Decedent's vehicle] enters the intersection and fails to yield the right of way to [Decker's vehicle]. [Decker's vehicle] collides into the passenger side of [decedent's vehicle]. [Decker's vehicle] travels south bound onto an earth embankment and private parking lot off the west shoulder of State Route 32. [Decker's vehicle] comes to a stop facing south bound on the earth embankment and private parking lot. [Decedent's vehicle] travels southeast bound onto an earth embankment off the east shoulder of State Route 32. [Decedent's vehicle] comes to a stop in the earth embankment facing north bound. [Decedent] pronounced deceased on scene. Both vehicles towed by Gallagher's."
(id., Exhibit A). The claim alleges the accident was "caused by the negligent, careless, reckless, defective and improper ownership, design, construction, signage as well as past and present maintenance of the Roadway, including the lack of maintenance of the pavement and asphalt" and the "pavement shoulder of the Roadway in the vicinity of the accident," by the defendants (id., ¶¶ 9-10). The claim alleges that defendants "had actual and/or constructive notice of a defective condition of [sic] the aforementioned Roadway before the accident complained of herein through, inter alia, by their affirmative act in creating said defect and in the duration of said defect prior to this accident" (id., ¶ 11). The claim alleges that defendants' negligence also includes:
"(a) failing to correct a dangerous Roadway;
(b) failing to inspect the Roadway for dangerous conditions;
(c) allowing a dangerous Roadway to exist over an unreasonable period of time;
(d) failing to correct a dangerous condition in a timely manner;
(e) allowing a dangerous and hazardous Roadway for an unreasonable period of time;
(f) failing to warn the general public of the dangerous and hazardous condition of the Roadway;
(g) failing to close or barricade that section of the Roadway while the same was in an unsafe condition; and
(h) failing to timely act upon their knowledge and information of the hazardous road conditions that existed."
(id., ¶ 12).
Defendant first asserts that the pleading, which is denominated as a Notice of Claim pursuant to General Municipal Law § 50-e "is not a pleading that commences a lawsuit in any Court, including the New York State Court of Claims" and that "inasmuch as claimant failed to serve an actual claim upon [the Attorney General] this Court lacks subject matter jurisdiction over the claim" (Cagino Affirmation, ¶¶ 8-9 [emphasis in original]). Defendant further contends that if the pleading is construed to be a claim, it does not comply with Court of Claims Act § 11 (b) because it uses only "boilerplate language in asserting that the State was somehow negligent in its design, construction, and/or maintenance of the subject roadway," it "omits any facts giving rise to or regarding the manner in which the accident occurred," it "references a wholly unspecified 'dangerous condition' of the road but completely omits a description of the manner in which the roadway was improperly designed, constructed and/or maintained, and it further fails to state how such condition was the proximate cause of the accident" (id., ¶¶ 13-15). In sum, defendant argues that "[t]here is no factual allegation to support claimant's ideation that the accident was caused by any act of neglect by the State" and that the claim's conclusory or general allegations of negligence are insufficient to confer jurisdiction (see id., ¶¶ 16-17).
Claimant argues that defendant has waived any objection to the claim under Court of Claims Act § 11 (c) (ii) because defendant did not timely move to dismiss the claim before the service of the responsive pleading was required nor raise the objection in its responsive pleading. Claimant further contends that the denomination of the claim as a "Verified Notice of Claim" is a scrivener's error, that the Clerk of the Court of Claims accepted the claim for filing and that the pleading should "be gleaned in its entirety and not what a party denominates the paper," and that "[a] claim by any other name is still a claim" (McDaniel Affirmation, ¶ 39). Claimant argues that the claim is not deficient under Court of Claims Act § 11(b) as it adequately pleads with particularity the time and place of the accident, as well as the nature of defendant's liability. Finally, claimant seeks permission to amend its claim.
As an initial matter, claimant's reliance on Court of Claims Act § 11 (c) (ii) for the premise that defendant waived its objections to the claim is misplaced, because that provision defines circumstances under which defendant may waive objections to the manner in which the claim was served, but defendant is not asserting such an objection. Rather, defendant objects to the form of the pleading on the ground that it is not an actual claim, and alternatively, that if it is construed as such, it fails to comply with the jurisdictional pleading requirements by failing to state the nature of the defendant's alleged negligence. Simply stated, defendant's objections are addressed to the Court's subject matter jurisdiction over the claim, which may not be waived and which may be raised at any stage of the action (see Financial Indus. Regulatory Auth., Inc. v Fiero, 10 NY3d 12, 17 ).
Defendant's argument that claimant failed to serve an "actual claim" (Cagino Affirmation, ¶ 9 [emphasis in original]) is unpersuasive. Regardless of how the claim is denominated, the test is whether the pleading alleges all of the information required by Court of Claims Act § 11 (b) (see Bennice v New York State Olympic Regional Dev. Auth., UID No. 2015-040-045 [Ct Cl, McCarthy, J., Sep. 30, 2015] [claim denominated as a Notice of Claim under GML § 50-e properly construed as a claim inasmuch as it complied with Court of Claims Act § 11 (b) pleading requirements]; Bye v State of New York, 90 Misc2d 265, 266-267 [Ct Cl 1977]). Thus, the claim will not be dismissed on this ground.
The claim will, however, be dismissed for failure to adequately plead how defendant was allegedly negligent in the ownership, design, construction, signage and maintenance of the roadway. The claim allows inferences to be drawn that the traffic signals that were posted at the subject intersection or the condition of the roadway or shoulder played some role in the accident, but the claim contains only conclusory and general allegations and is bereft of any factual allegations as to the manner of the accident that would assist defendant in investigating and ascertaining its liability. To the extent that the attached Police Accident Report is considered a part of the pleading (see CPLR 3014; Trojak v State of New York, UID No. 2014-018-530 [Ct Cl, Fitzpatrick, J., July 30, 2014] [facts contained within documents attached to the claim can satisfy Court of Claims Act § 11 (b) pleading requirements]), it recites only that the two vehicles approached the subject intersection which was controlled by traffic signals, and that the vehicles were involved in a collision after claimant failed to yield the right of way. Neither the pleading itself nor the attached Police Accident Report provides facts from which the nature of defendant's liability may be gleaned. Thus, the claim is manifestly noncompliant with Court of Claims Act § 11 (b), and defendant's motion to dismiss it must be granted.
Claimant's request for permission to amend the claim will not be granted, for each of the following reasons. First, it would be improper to grant such affirmative relief where, as here, claimant did not cross-move for such relief. Further, a motion to amend the pleading pursuant to CPLR 3025 (b) must be supported by a proposed amended pleading, which is lacking from claimant's submission. Moreover, and even if the request to amend the claim had been set forth in a properly noticed motion and supported by a proposed amended claim, Court of Claims Act § 9 (8), upon which claimant relies, permits the Court to allow amendment of the claim "in the furtherance of justice for any error in form or substance," but claimant here seeks to amend the pleading to cure deficiencies, not to fix an error. Finally, a jurisdictional pleading defect may not be cured by amendment of the claim (see Hogan v State of New York, 59 AD3d 754, 755 [3d Dept 2009]; Roberts v State of New York, 4 Misc 3d 768, 774 [Ct Cl 2004]).
Accordingly, it is
ORDERED, that defendant's motion number M-91890 is GRANTED, and claim number 129890 is DISMISSED.
May 24, 2018
Saratoga Springs , New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 129890, filed June 23, 2017;
(2) Notice of Motion to Dismiss in Lieu of Answer, dated February 28, 2018;
(3) Affirmation of Paul F. Cagino, AAG, in Support of Motion to Dismiss in Lieu of Answer,
dated February 28, 2018, with Exhibit A;
(4) Affirmation of Peter A. McDaniel, Esq., in Response to Motion to Dismiss in Lieu of
Answer, dated March 14, 2018, with Exhibits A-H;
(5) Claimant's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment [sic], dated March 14, 2018.