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Anthony CURRO, Claimant(s) v. The STATE of New York, Defendant(s)
This claim is brought by Carman Curro 1 on behalf of his son, Anthony Curro (hereinafter A.C.), who was 14 years old at the time of his bicycle accident that occurred in the Town of North Salem in 2017. A trial was held on the issue of liability on December 6, 2021 through December 9, 2021, April 7, 2022, April 29, 2022, and May 24, 2022.2
At the conclusion of claimant's case presented at trial, the State moved to dismiss the claim pursuant to Court of Claims Act § 11 (b), based upon claimant's admission that the accident did not occur on the date alleged in the claim or at the location alleged in the claim (T:Vol. V, p 105).
Specifically, the State noted that the claim alleges that on August 17, 2017 at approximately 1:00 p.m., A.C. was riding his bicycle on the shoulder of Titicus Road adjacent to the parking lot of the North Salem Lions’ Community Center located at 1 Titicus Road in the Town of North Salem, when A.C.’s bicycle rode directly over the storm drain/catch basin/grate located on the blacktop shoulder, causing the front tire of A.C.’s bicycle to become caught, stuck and/or lodged in the grate, propelling A.C. off his bicycle landing directly on his face (Claim ¶¶ 2-3).
At trial, however, claimant maintained that the accident occurred on August 14, 2017 and not August 17, 2017, as was alleged in the claim. Additionally, claimant maintained at trial that the location of the accident was in the parking lot of 1 Titicus River Road and was not on the shoulder adjacent to 1 Titicus Road, as was alleged in the claim. It is undisputed that Titicus Road and Titicus River Road both exist in the Town of North Salem at different locations.
In response to the State's motion, claimant did not set forth any specific arguments in opposition to the State's motion (T:Vol. V, p 112). The Court reserved decision on the State's motion (id. at 113).
At the conclusion of the trial, the State renewed its motion (T:Vol. VII, p 103). Claimant opposed the motion arguing that Court of Claims Act § 11 (b) was inapplicable because it was not established that the State was not able to conduct an adequate investigation based upon the allegations of the claim. Claimant noted that the State's expert testified at trial that he investigated the accident site at 1 Titicus River Road, which he visited on four occasions, and that there was no confusion as to the location of the accident (id. at 106). As to the discrepancy with the date of the accident, claimant argued that the State's expert visited the site when the condition had not changed in any way since the date of the accident (id. at 107). Claimant further argued that the Bill of Particulars clarified the accident location and that there was no issue at the depositions as to the location of the accident (id.).
In reply to claimant's arguments, the State argued that the Second Department recently held that prejudice to the State is irrelevant in deciding a motion to dismiss brought pursuant to Court of Claims Act § 11 (b) (T:Vol. VII, p 113).3 The State argued that, “[t]he Court is to go by the four corners of the claim. This claim had the wrong date, the wrong road, claimed it was on a shoulder and/or a roadway, and I submit, Your Honor, the proof does not substantiate that” (id.). The Court reserved decision on the State's motion (id. at 113-114).
As noted, in addition to the post-trial memoranda, the parties submitted letter briefs addressed to the State's motion to dismiss. In support of its motion, the State argued that the claim is jurisdictionally defective and that therefore, regardless of whether the State was prejudiced, the claim must be dismissed. In opposition to the State's motion, claimant argued that the claim does not warrant dismissal because under Heisler v State of New York, (78 AD2d 767 [4th Dept 1980]), and its progeny, substantial compliance with Court of Claims Act § 11 (b) is all that is required and the claim substantially compiled with Court of Claims Act § 11 (b). Claimant further argued that the State was not prejudiced in its ability to promptly investigate the allegations of the claim and to ascertain its liability.
As aptly argued by the State, the Second Department recently held, on December 14, 2022, that a claim must allege the date of the mishap and that the failure to specify the correct date in the claim renders the claim jurisdictionally defective, compelling the dismissal of the claim (see Sacher v State of New York, 211 AD3d 867, 870 [2d Dept 2022]).
In its analysis and in reaching its determination, the Second Department noted that the Court of Appeals has made it clear that the State's waiver of its sovereign immunity is conditioned upon claimant's satisfaction of all of the requirements set forth in Court of Claims Act § 11 (b) and that the failure to satisfy any of the conditions of Court of Claims Act § 11 (b) is a jurisdictional defect which may not be cured by amendment (id. at 869).
Additionally, in Sacher (211 AD3d 867), the Second Department addressed the very same arguments which claimant made in the claim at bar and the Second Department held that such arguments are without merit (id. at 872). Indeed, the Second Department went to great lengths to explain that reliance upon Heisler, (78 AD2d 767) and its progeny, is misplaced (Sacher, 211 AD3d at 873-877). In that regard, the Second Department noted that the Court of Appeals has consistently held that nothing less than “strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary” and that the Court of Appeals “has never adopted” a “substantial compliance” standard sufficient to permit a court to exercise jurisdiction over a claim against the State (id. at 874-875).
The Second Department acknowledged that, while it has employed a standard of substantial compliance in cases involving the Court of Claims Act requirement that a claimant describe the general nature of the claim, the Second Department has not employed a standard of substantial compliance in cases involving the Court of Claims Act requirement that a claimant set forth the time when and the place where the claim arose (id.). The Second Department stated, “[t]o the contrary, this Court's case law reflects that this Court has continued to apply a strict compliance standard” with respect to the Court of Claims Act requirement that a claim allege the time when the claim arose and that the Court of Appeals has also continued to apply a strict compliance standard with respect to the statutory requirement that a claim state the time when the claim arose (id.).
The Second Department also explicitly rejected claimant's argument that, given the information provided, the defendant should have been able to discover the correct date that the claim arose. The Second Department noted that a defendant is not required to go beyond a claim to ascertain the information which should be provided pursuant to statutory requirements of the Court of Claims Act, as that is not a defendant's burden. Finally, the Second Department stated, “[a]s this Court has repeatedly observed: ‘[l]ack of prejudice to the [defendant] is immaterial and a court is without power to dispense with applicable jurisdictional requirements of law based upon its own concepts of justice’ (emphasis in original) (citations omitted)” (id. at 876).
Accordingly, while the Court is mindful of the efforts of counsel, who during the seven days of trial, presented numerous witnesses and exhibits, and zealously advocated for their respective positions by diligently examining and cross-examining each of the witnesses, the Court must adhere to the jurisdictional mandates of Court of Claims Act § 11 (b) and the controlling precedent that compels the dismissal of the claim.
Therefore, based upon the recent Second Department decision of Sacher (211 AD3d 867), as cited by the State, and the Second Department's explicit rejection of the very same arguments advanced by claimant's counsel in the case at bar, this Court finds that the State has made a sufficient showing to warrant granting the State's motion to dismiss the claim as jurisdictionally defective due to claimant's failure to allege the correct date of the accident in the claim, regardless of whether the State was prejudiced by claimant's failure.
Accordingly, the State's motion to dismiss the claim, made at the conclusion of trial and upon which decision was reserved, is now GRANTED and claimant's motion for directed verdict is DENIED.
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 130354.
1. Carman Curro testified at trial and was sworn in as Carmelo Curro.
2. Page references to the trial transcript will be preceded by the letter “T” and refer to the trial transcript volume as follows: Vol. I (12/6/21); Vol. II (12/7/21); Vol. III (12/8/21); Vol. IV (12/9/21); Vol. V (4/7/22); Vol. VI (4/29/22); and Vol. VII (5/24/22).
3. The State failed to provide the Court with either the case name or citation from the Second Department and did not include the citation in either the State's post-trial memorandum or the State's post-trial reply memorandum. Accordingly, via correspondence dated March 22, 2023, the Court directed the State to provide the case name and the citation of the case which the State referred to at page 113 of Volume VII of the trial transcript. The State responded on March 22, 2023 with the citation and additional citations with legal argument and analysis in a two-page letter memorandum. By letter dated March 23, 2023, claimant objected to the length and substance of the State's response as beyond the Court's limited inquiry. By correspondence dated March 23, 2023, the Court afforded claimant the opportunity to submit a two-page response to the State's submission. Claimant responded with a two-page letter memorandum dated March 23, 2023.
Walter Rivera, J.
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Docket No: Claim No. 130354
Decided: March 30, 2023
Court: Court of Claims of New York.
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