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Carlos DELUCIA, Leon Santiago and Theodore Dymi, Claimants, v. The STATE of New York, Defendant.
The following papers numbered 1-4 were read and considered by the Court on claimants’ motion for an order pursuant to Court of Claims Act § 10 (8) (a) to treat claimants’ notices of intention as a claim or, alternatively, to file a late claim pursuant to Court of Claims Act § 10 (6), and on the State's cross-motion for leave to amend the State's answer under CPLR 3025 (b) to include affirmative defenses pertaining to timeliness and the serious injury threshold, and to dismiss the claim under CPLR 3211 (a) (2) and (a) (7) for, respectively, untimely service and failure to state a cause of action:
Notice of Motion, Attorney's Supporting Affirmation, and Exhibits 1
Notice of Cross-Motion, State's Attorney's Affirmation in Support of Cross-Motion and in Opposition to Motion, Exhibits, and Memorandum of Law 2
Attorney's Affirmation in Reply and in Opposition to Cross-Motion, and Exhibit 3
Reply to Claimants’ Opposition 4
The joint claim for negligence by three incarcerated individuals alleges that on February 17, 2018, at approximately 7:50 p.m., claimants sustained serious injuries while riding in a bus owned by the Department of Corrections and Community Supervision that was involved in an accident on the Gateway Bridge at Sing Sing Correctional Facility. The driver was allegedly negligent in attempting to drive up a hill in poor weather conditions, resulting in the bus sliding down the hill and striking a guardrail (Pollack Aff., Ex. D [claim]). After claimants each filed a notice of intention to file a claim, the joint claim was filed on January 21, 2020, and it was received by the Attorney General's Office on April 23, 2020 (Pollack Aff., Ex. E). The State served an answer on June 26, 2020 (Pollack Aff., Ex. F). Claimants served their bill of particulars on November 6, 2020 (Pollack Aff., Ex. H).
On August 13, 2021, claimants filed a motion for an order pursuant to Court of Claims Act § 10 (8) (a) to treat claimants’ notices of intention as a claim or, alternatively, to file a late claim pursuant to Court of Claims Act § 10 (6). The State opposes and cross-moves for leave to amend the State's answer under CPLR 3025 (b) to include affirmative defenses pertaining to timeliness and the serious injury threshold, and to dismiss the claim under CPLR 3211 (a) (2) for untimely service, and under CPLR 3211 (a) (7) for failure to state a cause of action. Claimants oppose the cross-motion. The court will first discuss the cross-motion, which is dispositive.
“In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit” (Reese v Jahan Contr., 120 AD3d 1399, 1400 [2d Dept 2014]; see CPLR 3025 [b]; Bernardi v Spyratos, 79 AD3d 684, 688 [2d Dept 2010]). The State seeks to amend its answer by adding the following two affirmative defenses:
“EIGHTH AFFIRMATIVE DEFENSE
10. Pursuant to Court of Claims Act § 10(3) and § 11(a)(i), this Court lacks subject matter jurisdiction of the Claim, as Claimants failed to serve the Claim within two years of the accrual date.
NINTH AFFIRMATIVE DEFENSE
11. Claimants fail to state a cause of action, in that, there is no allegation of a ‘serious injury’ or ‘economic loss greater than basic economic loss’ as required by Insurance Law §§ 5102(d) and 5014(a), in accordance with CPLR § 3016(g)” (Scolavino Aff., Ex. H [amended answer]).1
Court of Claims Act § 10 (3) requires that negligence claims be filed and served within 90 days following accrual of the claim unless a notice of intention to file a claim is served within that time period “in which event the claim shall be filed and served upon the attorney general within two years after the accrual” (Lyles v State of New York, 3 NY3d 396, 400 ). “ ‘Because 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’ ” (Lichtenstein v State of New York, 93 NY2d 911, 913 , quoting Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ).
The claim accrued on February 17, 2018. Two years from that date was February 17, 2020. The State argues that the claim was served 66 days past expiration of the two-year extension that was triggered by timely service of the notices of intention. Claimants respond that pursuant to Court of Claims Act § 11 (c), the State has waived its objection to untimely service of the claim by not moving to dismiss the claim on that ground before filing and serving an answer, and by not pleading untimely service as an affirmative dense. Therefore, claimants argue that the State cannot now rely on the defense of untimely service by amending the answer.
Section 11 (c) provides:
“Any objection or defense based upon failure to comply with ․ the time limitations contained in section ten of this act ․ is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure.”
The interpretation of section 11 (c) has been to strictly construe its requirements (see Sinacore v State of New York, 176 Misc 2d 1, 7 [Ct Cl 1998]; Knight v State of New York, 177 Misc 2d 181, 184 [Ct Cl 1998]). “To permit an already waived time limitation or manner of service defense to be interposed through the device of an amended answer would not only be contrary to the underlying purpose of section 11 (c) but would be of no practical effect given the express language prohibiting dismissal of the claim once the defenses are waived [․]. As a result, this Court holds that a defense once waived pursuant to Court of Claims Act § 11 (c) may not later be asserted in an amended pleading” (Knight, 177 Misc 2d at 184; see Williams v State of New York, 11 Misc 3d 1064 [A] [Ct Cl 2005], revd on other grounds 38 AD3d 646 [2d Dept 2007]).
The State has waived its objection or defense based upon claimants’ failure to comply with the time limitations of Court of Claims Act § 10 (3) and cannot now plead the proposed eighth affirmative defense in an amended answer. Such an affirmative defense would plainly be devoid of merit because it has been waived.
The proposed ninth affirmative defense asserts that the claim fails to state a cause of action, and the State's cross-motion to dismiss the claim pursuant to CPLR 3211 (a) (7) asserts the same ground. The State did not plead this ground as an affirmative defense in the original answer, or previously move to dismiss the claim pursuant to CPLR (a) (7). Regardless, under CPLR 3211 (e), a motion based on failure to state a cause of action may be brought “at any subsequent time or in a later pleading, if one is permitted.” The Court will first address the State's cross-motion to dismiss the claim under CPLR 3211 (a) (7).
In considering a motion to dismiss the claim under CPLR (a) (7), the Court must afford the pleading a liberal construction, accept the facts as alleged in the claim as true, accord claimant the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see e.g. Leon v Martinez, 84 NY2d 83, 87-88  [finding the criterion is whether complainant has a cause of action, not whether she has stated one]). The Court is not limited to the facts alleged in the claim but may also consider the bill of particulars to assess whether claimants have a viable cause of action (see Epstein v MTA Long Is. Bus, 161 AD3d 821, 822-823 [2d Dept 2018]).
The State cross-moves to dismiss contending that the allegations in the claim fail to meet the serious injury threshold for maintaining a personal injury action arising out of negligence in the use or operation of a motor vehicle in this State. Under the “No-Fault” insurance statute, a claimant who is injured in a motor vehicle accident is limited to seeking damages for a “serious injury” or for economic loss greater than “basic economic loss” (Insurance Law § 5104).2 Claimant opposes the cross-motion contending that the injuries sustained in the accident were indeed serious as defined in Insurance Law § 5102 (d).
CPLR 3016 (g) provides as follows:
“(g) Personal injury. In an action designated in subsection (a) of section five thousand one hundred four of the insurance law, for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, the complaint shall state that the plaintiff has sustained a serious injury, as defined in subsection (d) of section five thousand one hundred two of the insurance law, or economic loss greater than basic economic loss, as defined in subsection (a) of section five thousand one hundred two of the insurance law.”
Serious injury is defined by Insurance Law § 5102 (d) in the following manner:
“(d) ‘Serious injury’ means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.”
The instant claim alleges that all three claimants sustained “serious physical injury” insofar as claimants suffered “Pain and Suffering,” “Permanent Disability,” “Emotional Distress” and “Medical Expenses” (Ex. A, ¶¶ 3, 5). Claimants’ bill of particulars (Ex. G) adds that: all claimants suffered “[i]njury and damage to the nerves, tendons, soft and hard fascia and cartilaginous parts surrounding and compromising the injured areas”; the “injured areas” are the “lumbosacral” area of the back for all claimants, the left knee for claimant Carlos Delucia, and the left shoulder for claimant Theodore Dymi; all claimants, except Carlos Delucia, suffered “sprain/strain”; claimant Theodore Dymi suffered a “straightening of lumbar lordosis”; and claimant Carlos Delucia suffered an “aggravation of pre-existing internal derangement of left knee.”
The State argues that the allegation of serious injury is conclusory and insufficient to meet the requirement of section 5102 (d), and that claimants were required, but failed, to allege they sustained a specific injury contained in the definition of “serious injury.” Claimants argue in opposition that the allegations in the claim and in the bill of particulars of “serious injury” comport with the requirements in the Insurance Law and the liberal pleading standards. Claimants argue as well that as incarcerated individuals they are not in a position to seek medical treatment and providers of their choice.
Neither the claim nor the bill of particulars refer explicitly to the Insurance Law, and there are no allegations of fracture, disfigurement, dismemberment, death, loss of a fetus or “permanent consequential limitation of use of a body organ or member” (Insurance Law § 5102 [d]). However, the Court finds it reasonable to infer from the allegations as a whole that claimants are suing for a “significant limitation of use of a body function or system” (id.) and that the pleading requirements of CPLR 3016 (g) have been met. The claim alleges that all three claimants suffered “serious physical injury” and “permanent disability.” The bill of particulars alleges that all three claimants suffered “serious physical injury” and “serious injury,” and it specifies, inter alia, “injury and damage to nerves, tendons, soft and hard fascia and cartilaginous parts surrounding and compromising the injured areas,” which include the lumbosacral area of the back. Construing the claim and the bill of particulars in the non-moving parties’ favor, the reasonable inference is that at least some of these injuries constitute a significant limitation of use of a body “function or system” (Insurance Law § 5102 [d]), and thus, a “serious injury” as defined in the statute.3 The Court would caution that claimants have the burden at trial of establishing, by a preponderance of the evidence, that they suffered a “serious injury” as defined in Insurance Law § 5102 (d).
Because the Court has denied the State's cross-motion to dismiss the claim for failure to state a cause of action within the limits of Insurance Law § 5102 (d), the State's cross-motion for leave to amend the answer under CPLR 3025 (b) to include an affirmative defense based on the same ground is denied as “patently devoid of merit” (Reese, 120 AD3d at 1400).
Claimants’ Motion (M-97108)
Because the State's cross-motion to dismiss is denied, claimants’ motion for permission to treat their notices of intention as a claim pursuant to Court of Claims Act § 10 (8) or, alternatively, to file a late claim pursuant to Court of Claims Act § 10 (6), is moot.
Accordingly, the State's cross-motion to dismiss the claim pursuant to CPLR 3211 (a) (2) and (a) (7) is denied. The State's cross-motion for leave to amend the answer pursuant to CPLR 3025 (b) to assert affirmative defenses based on timeliness and the failure to state a cause of action is denied. Claimants’ motion to treat the notices of intention as a claim or, alternatively, for permission to file a late claim, is denied as moot.
This constitutes the decision and order of the Court.
1. Affirmation of Assistant Attorney General Joseph E. Scolavino.
2. Insurance Law § 5104 provides, in relevant part: “(a) Notwithstanding any other law, in any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery for non-economic loss, except in the case of a serious injury, or for basic economic loss.”
3. There is no claim for economic losses above $50,000, which is required to sue for economic loss under Insurance Law § 5102 (a).
Walter Rivera, J.
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Docket No: Claim No. 134317
Decided: March 02, 2022
Court: Court of Claims of New York.
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