Motion ot dismiss granted - claim did not allege wrongdoing by the State and State is not required to assemble of ferret out info which claimant is required to allege
|Claimant(s):||VELAM JACKSON NEWELL|
|Claimant short name:||NEWELL|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NY DEPARTMENT OF TRANSPORTATION|
|Footnote (defendant name) :|
|Claimant's attorney:||VELMA JACKSON NEWELL
|Defendant's attorney:||HON. LETITIA JAMES
Attorney General for the State of New York
By: Dorothy M. Keogh, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 15, 2021|
|See also (multicaptioned case)|
The following papers numbered 1-2 were read and considered by the Court on the State's pre-answer motion to dismiss Claim No. 136330:
Notice of Motion, Attorney's Supporting Affirmation and Exhibit...........................1
Claimant's Submission in Response to the State's Motion to Dismiss: A Marked-Up Copy of the State's Supporting Affirmation and Exhibits........................................2
On May 13, 2021, the Office of the Attorney General was served with a copy of Claim No. 136330, which was filed with the Court on May 6, 2021.
The claim alleges that on April 7, 2021, claimant was driving her vehicle on I-287 West, when she passed a work area with a flashing directional arrow. Thereafter, claimant noticed that her vehicle began to vibrate and slow down on its own. Claimant exited at the Sleepy Hollow exit and in response to her OnStar request for help, a tow truck was dispatched to 150 Westchester Road, Tarrytown, NY, where claimant's vehicle was placed on a flatbed and removed from the scene. The claim does not allege any negligence attributable to the State.
The State moves to dismiss the claim on the grounds that the claim is jurisdictionally defective because it fails to comply with the pleading requirements set forth in Court of Claims Act § 11 (b). Specifically, the State argues that the claim fails to state a cause of action against the State and does not 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. In that regard, the State argues that the claim fails to assert any conduct or omission that might be a basis of liability imposed upon the State.
In opposition to the State's motion to dismiss, claimant submitted a marked-up copy of the State's Supporting Affirmation, a copy of the filed claim, and a copy of a mail receipt by NYSDOT (New York State Department of Transportation) on June 14, 2021. Claimant did not offer any other opposition to the motion.
Court of Claims Act § 11 (b) provides in pertinent part, "[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 State's waiver of immunity from suits for money damages is contingent upon claimant's compliance with the specifications set forth in Court of Claims Act § 11 (b) (see Lepkowski v State of New York, 1 NY3d 201, 206-207 ). Moreover, "[t]he Court of Claims Act does not require the State to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (id. at 208).
In the case at bar, the claim fails to allege any acts or omissions attributable to the State for which claimant may maintain a cause of action in the Court of Claims (see Court of Claims Act § 11 [b]). Specifically, the claim fails to allege "the particular manner" in which the State was culpable or negligent (Kimball Brooklands Corp. v State of New York, 180 AD3d 1031, 1033 [2d Dept 2020]). Accordingly, the claim did not afford the State an opportunity to investigate the claim promptly and to ascertain its potential liability. Thus, dismissal of the claim is warranted (Kimball Brooklands Corp. 180 AD3d at 1033).
Accordingly, for the aforenoted reasons, the State's motion to dismiss Claim No. 136330 is hereby GRANTED.
September 15, 2021
White Plains, New York
Judge of the Court of Claims