Defendant's motion for summary judgment alleging that claimant, a bicyclist who was injured on grass clippings on the Jones Beach bike path, failed to adequately describe the location of his accident in the notice of intention to file a claim and the claim as required by CCA § 11 (b). Defendant also alleges that it did not have notice of the grass clippings disbursed by the lawn mower.
|Claimant short name:||NAVATTO|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Gina M. Lopez-Summa|
|Claimant's attorney:||The Turkewitz Law Firm
By: Eric Turkewitz, Esq.
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Alex J. Freundlich, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||July 22, 2020|
|See also (multicaptioned case)|
The following papers were read and considered by the Court on this motion: Defendant's Notice of Motion, Defendant's Affirmation in Support with annexed Exhibits A-M; Claimant's Affirmation in Opposition with annexed Exhibits 1-4 and Defendant's Affirmation in Further Support.
Defendant, the State of New York, has brought this motion pursuant to CPLR 3212 and Court of Claims Act (CCA) § 11 seeking an order dismissing the claim. Claimant, Peter Navatto, opposes the motion.
The underlying facts of this matter concern an incident which occurred on May 11, 2018 at approximately 2:15 p.m. when claimant lost control of his bicycle while riding on the paved bicycle pathway at Jones Beach State Park due to grass clippings on the pathway.
Defendant moves this Court for dismissal of the claim due to claimant's failure to adequately describe the location of the subject accident in both the claim and the notice of intention to file a claim as required by Court of Claims Act § 11 (b). Defendant raised these infirmities as affirmative defenses contained in its answer.
Claimant's notice of intention to file a claim was served on May 24, 2018 and describes the claim as follows:
"On or about May 11, 2018 at approximately 2:15-2:30 p.m., in Jones Beach State Park, Mr. Navatto was riding his bicycle southbound on the Jones Beach Bikeway in the vicinity of parking field 5A. This bikeway is adjacent to the Wantagh State Parkway.
Mr. Navatto fell when he attempted to brake in anticipation of a turn, but his bike skidded on recently mowed grass clippings that were improperly and negligently deposited on the bike path by a park employee or agent who was mowing the grass. This refuse placed on the pavement just before the turn created an unavoidable trap and hazard. Mr. Navatto fell as a result, and suffered serious injuries that (among other injuries) necessitated orthopedic surgery."
The verified claim was served on August 6, 2018 and describes the incident as follows:
"On or about May 11, 2018 at approximately 2:15-2:30 p.m., at Jones Beach State Park, Claimant Peter Navatto was lawfully riding his bicycle southbound on the Jones Beach Bikeway in the vicinity of parking field 5A. This Bikeway is adjacent to the Wantagh State Parkway. Mr. Navatto fell when he attempted to brake in anticipation of a turn, but his bike slipped and skidded on recently mowed grass clippings that were improperly and negligently deposited on the Bikeway by a park employee or agent who was mowing the grass. The clippings were placed on the Bikeway just before a turn, creating an unavoidable trap and hazard for bicyclists, including Mr. Navatto."
Court of Claims Act § 11 (b) requires in pertinent part 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." The notice of intention must also state, inter alia, the place where the claim arose. These requirements are jurisdictional in nature and must be strictly complied with in order to properly initiate an action against defendant (Kolnacki v State of New York, 8 NY3d 277 ). "The Court of Claims Act does not require [defendant] 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 ).
Defendant argues that the location of the accident put forth in both the notice of intention and the claim does not comply with the requirements of Court of Claims Act § 11 (b) since there is an 800-foot section of the bikeway with 4 turns in the vicinity of parking field 5A.
"The purpose of the section 11 (b) pleading requirements is to provide a sufficiently detailed description of the particulars of the claim to enable the State to investigate and promptly ascertain the existence and extent of its liability" (Sinski v State of New York, 265 AD2d 319 [2d Dept 1999]). Claimant has failed to adequately identify the location of his accident in either the notice of intention to file a claim or the claim. The use of the words "vicinity" and "in anticipation of a turn," in the context of an 800-foot stretch of bikeway with at least 4 pronounced turns, does not sufficiently narrow the location of claimant's fall. Thus, claimant's descriptions of the location of the accident as recited in the notice of intention to file a claim and the claim were not sufficiently definite to satisfy the requirements set forth in Court of Claims Act § 11 (b) (Kimball Brooklands Corp. v State of New York, 180 AD3d 1031 ; Sharief v State of New York, 164 AD3d 851 [2d Dept 2018]; Triani v State of New York, 44 AD3d 1032 [2d Dept 2007]; Cobin v State of New York, 234 AD2d 498 [2d Dept 1996]; see also Katan v State of New York, 174 AD3d 1212 [3d Dept 2019]). As a result, the claim is jurisdictionally defective and the Court is constrained to dismiss the claim (Hargrove v State of New York, 138 AD3d 777 [2d Dept 2016]; Fairchild Corp. v State of New York, 117 AD3d 780 [2d Dept 2014]; Hunter v State of New York, 72 AD3d 1030 [2d Dept 2010]; Prisco v State of New York, 62 AD3d 978 [2d Dept 2009], lv denied 13 NY3d 706 ).
Therefore, for the foregoing reasons, defendant's motion is granted and the claim is dismissed.
July 22, 2020
Hauppauge, New York
Gina M. Lopez-Summa
Judge of the Court of Claims