AND KARIN VISCUSO v. The State of New York, Defendant. (2023)

The event underlying these related claims occurred on June 10, 2018, when claimant Mark Viscuso drove over a sunken manhole cover while traveling on his motorcycle on State Route 22 in the Village of Hoosick Falls. The alleged defect caused both the operator, Mark Viscuso, and his wife and passenger, claimant Karin Viscuso, to be thrown from the motorcycle and sustain personal injuries. Defendant moves to dismiss the claims pursuant to Court of Claims Act §§ 10 and 11, and CPLR 3211(a)(2), (a)(7) and (a)(8), on the ground that the Court lacks subject matter jurisdiction. Claimants oppose. For the reasons stated below, defendant's motions are granted.

Before addressing the merits of defendant's jurisdictional arguments, a brief recitation of the rather convoluted and confusing procedural history of these claims is necessary. Claimants, through prior counsel, first served Notices of Intention to File a Claim for each claimant (each erroneously captioned "Notice of Claim") upon the Attorney General on August 13, 2018. After these Notices were rejected by the Attorney General for lack of verifications, prior counsel served verified versions of the same upon the Attorney General on August 23, 2018. The first claim, assigned Claim No. 135557, was served upon the Attorney General on May 26, 2020, and then again on November 2, 2020, after the claim was filed via the New York State Courts Electronic Filing System (NYSCEF) on the same date.¹

After serving and filing its Answer,² defendant moved to dismiss Claim No. 135557, arguing that the claim failed to satisfy the pleading requirements set forth in Court of Claims Act § 11 (b) because it was insufficiently specific in describing the location of the accident (Motion No. M-96295). The Court denied the motion, finding that claimants' description of the accident in the claim, which stated that the accident occurred at a sunken manhole cover in the southbound lane of State Route 22, approximately 1/4 of a mile south of the intersection with Danforth Street, was not jurisdictionally deficient (see Viscuso v State of New York, UID No. 2021-015-032 [Ct Cl, February 23, 2021] [Collins, J.]).³

While that motion was pending, however, claimants filed Claim No. 135857 on January 21, 2021. This second claim pleaded the same cause of action as the first, but contained far more detail as to the location of the accident, as well as photographic exhibits of the location. Defendant filed an Answer to Claim No. 135857 on March 17, 2021. Following subsequent transfer of both claims to the undersigned, defendant now moves to dismiss both Claim No. 135557 and Claim No. 135857.

The basis of defendant's motions is that claimants' Notices of Intention that were served upon the Attorney General on August 23, 2018, failed to meet the pleading specificity standards of Court of Claims Act § 11 (b), thereby vitiating the extension of time to serve and file the claims normally afforded under Court of Claims Act § 10 (3). Thus, defendant argues, both Claim No. 135557 and Claim No. 135857 were untimely served and filed, mandating dismissal. In opposition, claimants argue that the present motions are identical to the prior dismissal motion that was denied (Motion No. M-96295). Claimants assert that they have pleaded the accident location with the requisite particularity and that the claims are timely. Claimants further contend that the Court should not consider defendant's belated motions given its failure to comply with previously ordered discovery obligations.

Court of Claims Act § 11 (b) places several "substantive conditions upon the State's waiver of sovereign immunity by requiring the claim to specify (1) the nature of the claim; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries claimed to have been sustained;" and, with the exception of certain cases (including a personal injury claim like this one), (5) "the total sum claimed" (Lepkowski v State of New York, 1 NY3d 201, 207 [2003] [internal quotation marks and brackets omitted]; see also Davila v State of New York, 140 AD3d 1415, 1415-1416 [3d Dept 2016]). Other than the items of damage or injuries, and the sum total claimed, the statute also requires the same substantive information be provided if a litigant opts to serve a valid Notice of Intention to File a Claim upon the State in order to extend the 90-day time period for commencement of a personal injury action as set forth in Court of Claims Act § 10 (3)⁴ (see Court of Claims Act § 11 [b]; Wilson v State of New York, 61 AD3d 1367, 1368 [4th Dept 2009]; see also Sega v State of New York, 246 AD2d 753, 755 [3d Dept 1998] [notice of intention to file a claim must include a "sufficiently detailed description of the place where the claim arose"] [internal quotation marks and brackets omitted]). These requirements are strictly construed and noncompliance with any of them constitutes "a jurisdictional defect" requiring dismissal (Kolnacki v State of New York, 8 NY3d 277, 280-281 [2007]; Lepkowski, 1 NY3d at 209).

The purpose of the pleading requirements of Court of Claims Act § 11 (b) is "to enable the State . . . to investigate [any claim made against it] promptly and to ascertain its [potential] liability under the circumstances" (Lepkowski, 1 NY3d at 207 [internal quotation marks omitted]; see also Clark v State of New York, 165 AD3d 1371, 1372 [3d Dept 2018], lv denied 33 NY3d 905 [2019], rearg denied 34 NY3d 973 [2019]). As with any of the substantive pleading requirements, although the description of the location where a claim arose need not be set forth with "absolute exactness," "a sufficiently detailed description" must be provided to facilitate the State's ability to investigate the incident solely by reference to the information contained within the four corners of the Notice of Intention or, if no such notice was served, the claim (Katan v State of New York, 174 AD3d 1212, 1213 [3d Dept 2019] [internal quotation omitted]; see also Cobin v State of New York, 234 AD2d 498, 499 [2d Dept 1996], lv dismissed 90 NY2d 925 [1997]). The State is not required independently "to ferret out or assemble information that section 11(b) obligates [claimants] to allege" in order to be able to investigate an occurrence (Lepkowski, 1 NY3d at 208; see also Katan, 174 AD3d at 1213; Vallarta v State of New York, 211 AD3d 884, 885 [2d Dept 2022]). Furthermore, the lack of any prejudice to the State from a jurisdictionally deficient notice of intention to file a claim or claim "is immaterial" (Criscuola v State of New York, 188 AD3d 645, 646 [2d Dept 2020], citing Matter of DeMairo v State of New York, 172 AD3d 856, 857 [2d Dept 2019]; Vallarta, 211 AD3d at 885; Wilson v State of New York, 61 AD3d at 1368).

Here, despite claimants' apparent misinterpretation of defendant's central argument, it is not the sufficiency of the pleadings of either claim under Court of Claims Act § 11 (b) that is at issue on these motions. Rather, the dispositive question is whether the Notices of Intention that were served upon defendant within 90 days of the accident, on August 23, 2018, satisfied the sufficiency requirements of Court of Claims Act § 11 (b) regarding the necessary description of the place where the claim arose, i.e., the location claimants' accident occurred. As relevant here, the Notices for each individual claimant, attached as exhibits to both claims, state only that the motorcycle accident "occurred on June 11, 2018[,] at approximately 1:51 pm in Hoosick Falls, New York. The accident occurred on High Street, a main road in Hoosick Falls, New York that is known as Route 22. The accident was the result of the motorcycle colliding with a sunken manhole."⁵

Unlike the subsequent pleading in Claim No. 135557, which stated that the accident occurred in the southbound lane of High Street / State Route 22 and also provided a distance from that roadway's intersection with a cross street—details sufficient to survive the earlier dismissal motion  ⁶ —and the pleading in Claim No. 135857, which provided more detail and even photographs of the location, the description of the location in claimants' Notices of Intention is completely bereft of any specificity or reference that would have enabled the State to narrow down in any way where on High Street / State Route 22 in the Village of Hoosick Falls the accident occurred. Given that the alleged injury-causing roadway defect in these claims was literally manhole sized—one of numerous manholes located along High Street / State Route 22  ⁷ —the Notices' generalized description of the accident's location as spanning the entire length of State Route 22 within the village, in both directions, did not satisfy the specificity requirement of Court of Claims Act § 11 (b) (see Sega v State of New York, 246 AD2d at 754-755 [affirming dismissal of claim where notice of intention stated only that accident occurred "on Route 7 West of the Village of Richmondville"]; Sommer v State of New York, 131 AD3d 757, 758 [3rd Dept 2015] [affirming dismissal of claim where notice of intention included only generalized description of location of slip and fall as taking place on a sidewalk at SUNY Oneonta campus]; see also Cobin v State of New York, 234 AD2d at 499 [affirming dismissal of claim where notice of intention alleged trip and fall injury "on the boardwalk at Jones Beach" in Nassau County, "in the East Quarter Circle or its vicinity"]; Pressley v State of New York, 74 Misc 3d 1233 (A) [Ct Cl 2022] [holding that claim alleging accident occurred on Sprain Brook Parkway within the Town of Greenburgh failed to meet specificity requirements of section 11 (b), and noting that when "the alleged defect is in an open setting, specificity in the description of the location of the incident is of heightened significance"] [internal quotation omitted]; Vargas v State of New York, UID No. 2009-037-020 [Ct Cl, June 19, 2009] [Moriarty, J.] [holding that claim's allegation of location of defect in condition of roadway that caused accident somewhere within a combined East/West stretch of roadway over four miles in length insufficient under section 11 (b)], aff'd for reasons stated 83 AD3d 1525 [4th Dept 2011]).

Because claimants' Notices of Intention failed to satisfy the specificity requirements of Court of Claims Act § 11 (b), they were jurisdictionally deficient and could not serve to extend claimants' time to serve and file their negligence claims beyond the 90-day period normally afforded under Court of Claims Act § 10 (3) (see Langner v State of New York, 65 AD3d 780, 781-782 [3d Dept 2009]; Sommer v State of New York, 131 AD3d at 758; see also Criscuola v State of New York, 188 AD3d at 646). Accordingly, claimants would have had to have commenced an action by the filing and service of a claim no later than September 10, 2018, in order to have complied with the timeliness requirements of the Court of Claims Act.⁸ But Claim No. 135557 and Claim No. 135857 were not served and filed until well beyond that date, in 2020 and 2021, respectively. Where, as here, defendant has preserved the defense with sufficient particularity in its Answers to the Claims, in accordance with Court of Claims Act § 11 (c) (see Steele v State of New York, 145 AD3d 1363, 1364 [3d Dept 2016]), the jurisdictional deficiencies in claimants' Notices of Intention and the resulting untimeliness of both claims filed thereafter " 'mandat[e] dismissal of the claim[s], even though this may be a harsh result' " (Katan v State of New York, 174 AD3d at 1213, quoting Morra v State of New York, 107 AD3d 1115, 1116 [3d Dept 2013]; see also Kolnacki v State of New York, 8 NY3d at 281 [recognizing that dismissal for failure to comply strictly with the jurisdictional requirements of the Court of Claims Act may be harsh, but that "it is for the Legislature, not this Court, to set the terms of the State's waiver of immunity."]; Cobin v State of New York, 234 AD2d 498; Criscuola v State of New York, 188 AD3d 645; Sommer v State of New York, 131 AD3d 757).

Finally, in light the Court's holding, it is unnecessary to reach defendant's alternative argument in support of dismissal that the claims fail to state a cause of action because the manhole specifically identified in Claim No. 135857 is not owned or maintained by the State, but rather is part of the Village of Hoosick Falls sanitary sewer system. In any event, the fact that the manhole may be part of the village sewer system, standing alone, would not necessarily establish that claimants failed to state a cause of action against the State because the State presumably would nevertheless be responsible for the paving of State Route 22, as well as other road maintenance, and such work could have a direct correlation to any elevation differential that may have existed between the manhole and the roadway, as alleged by claimants.

Based upon the foregoing, it is hereby

ORDERED, that defendant's Motion Nos. M-98789 and M-98790 are hereby GRANTED, and Claim Nos. 135557 and 135857 are DISMISSED.

July 14, 2023

Albany, New York

ZAINAB A. CHAUDHRY

Judge of the Court of Claims

Papers Considered:

1. Defendant's Notices of Motion;

2. Affirmations of Assistant Attorney General Michael T. Krenrich, with exhibits;

3. Affirmations in Opposition of Walter F. Benson, Esq., with exhibits;

4. Claim No. 135557, filed November 2, 2020, with exhibits;

5.Verified Answer, Claim No. 135557, filed November 4, 2020 and March 2, 2021;

6. Claim No. 135857, filed January 21, 2021, with exhibits;

7.Verified Answer, Claim No. 135857.

FOOTNOTES

1.   This claim was also previously received by the Court of Claims in hard-copy form on May 29, 2020. Because the COVID-related Administrative Order of Chief Administrative Judge Lawrence Marks which mandated the e-filing of all claims eligible for such filing was still in effect at that time (see AO/115/20), this paper claim was returned to claimants after their later electronic filing of the claim on November 2, 2020.

2.   Defendant's Answer was received by the Court on October 27, 2020, but given a filing date of November 4, 2020, the date the COVID-related filing restrictions set forth in AO/115/20 were lifted and normal filing by any method resumed (AO/267/20). Since the Answer pre-dates service of the e-filed version of the claim, it is evident that defendant was answering the earlier served version of the claim, which the Attorney General received around May 26, 2020. Although there was no legal requirement for defendant to answer the November 2020 duplicate of the claim after defendant was re-served with it (see Cadore v State of New York, 63 Misc 3d 1205 (A) [Ct Cl 2017], affirmed 170 AD3d 1531 [4th Dept 2019], lv dismissed 33 NY3d 1049 [2019]), defendant should have uploaded this paper-filed Answer to the NYSCEF system upon notice that the claim had been electronically filed.

3.   After the denial of Motion No. M-96295, defendant eventually filed a duplicate of its initial Answer, uploading it to the NYSCEF system under Claim No. 135557, albeit captioned with an incorrect claim number and with the obviously incorrect date of March 2, 2021.

4.   "Pursuant to Court of Claims Act § 10 (3), a claim to recover for personal injuries must be filed and served within 90 days of the accrual of the claim, unless the claimant [serves] a notice of intention to file a claim within that same time period" (Langner v State of New York, 65 AD3d 780, 781 [3d Dept 2009]).

5.   Although claimants' Notices of Intention state that the accident occurred on June 11, 2018, both Claim No. 135557 and Claim No. 135857 allege that the accident happened on June 10, 2018.

6.   Defendant's previous motion to dismiss Claim No. 135557 inexplicably raised only the section 11 (b) sufficiency of the claim's description of the accident's location, neglecting to raise the more significant defense based on the deficiency of the Notices of Intention set forth in the First through Sixth Affirmative Defenses of defendant's Answer. But for the preservation accomplished by the service and filing of its initial November 2020 Answer (albeit never uploaded to the NYSCEF system), this omission would have constituted a waiver of the defense under Court of Claims Act § 11 (c), which could not have been resurrected by the uploading of defendant's second Answer after its initial motion to dismiss was denied (see Knight v State of New York, 177 Misc 2d 181, 184 [Ct Cl 1998]).

7.   The record includes an affidavit of a professional engineer employed with the New York State Department of Transportation, in the capacity of Resident Engineer for Rensselaer County, which indicates that in just a .4 mile section of the southbound side of the roadway, there are over a dozen manholes.

8.   This is so whether the accrual date was June 11, 2018, as stated in the Notices of Intention, or June 10, 2018, as set forth in the Claims, since the 90th day after either date fell on a weekend—making Monday, September 10, 2018, the final day to timely serve and file a claim using each of the two possible accrual dates.

Zainab A. Chaudhry, J.