Nicholas Ursini, Claimant v. The State of New York,1, Defendant
The following papers numbered 1-3 were read and considered by the Court on claimant’s motion to dismiss affirmative defenses or to treat the notice of intention as a claim, to strike the State’s answer, to impose additional sanctions and/or to compel compliance with claimant’s demand for a bill of particulars and combined demands: Notice of Motion, Attorney’s Supporting Affirmation, and Exhibits 1 State’s Attorney’s Affirmation in Opposition, and Exhibits 2 Attorney’s Affirmation in Reply, and Exhibit 3 DECISION AND ORDER The claim for negligence, filed on August 6, 2020, alleges that on May 13, 2019, Nicholas Ursini fell and injured himself while walking on the premises of the State University of New York, Purchase College (SUNY Purchase). The State filed an answer with twelve affirmative defenses on November 16, 2020. Claimant moves to dismiss the first, ninth, eleventh and twelfth affirmative defenses pursuant to CPLR 3211 (b) or, alternatively, to treat claimant’s notice of intention as a claim pursuant to Court of Claims Act §10 (8) (a). Claimant also moves to strike the State’s answer pursuant to CPLR 3126, to impose additional sanctions, and/or to compel compliance with claimant’s demands for a bill of particulars and combined demands for information and documents pursuant to CPLR 3124. The State opposes the motion. By stipulation dated February 14, 2022, the parties’ attorneys have resolved their dispute insofar as it concerns the ninth affirmative defense, and claimant’s request for an order compelling compliance with claimant’s demand for a bill of particulars (Ex. 7).2 Motion to Dismiss Affirmative Defenses In a motion to dismiss affirmative defenses pursuant to CPLR 3211 (b), the claimant bears the burden of demonstrating that the affirmative defenses are without merit as a matter of law (see 534 E. 11th St. Hous. Dev. Fund Corp. v. Hendrick, 90 AD3d 541, 541-542 [1st Dept 2011]; Vita v. New York Waste Servs., LLC, 34 AD3d 559, 559 [2d Dept 2006]). In deciding a motion to dismiss an affirmative defense, the defendant “is entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed” (Warwick v. Cruz, 270 AD2d 255, 255 [2d Dept. 2000]). “If there is any doubt as to the availability of a defense, it should not be dismissed” (id.). The first and twelfth affirmative defenses (Ex. 6 [answer]) plead lack of jurisdiction due to the failure of the claim (Ex. 5) to meet the particularity requirements of Court of Claims Act §11. The eleventh affirmative defense pleads lack of jurisdiction due to the failure of the notice of intention (Ex. 3) to meet those same particularity requirements. These affirmative defenses are based on the jurisdictional requirements of Court of Claims §11 (b). Section 11 (b) requires that a notice of intention or a claim “shall state the time when and place where such claim arose [and] the nature of same.” A defendant “is not required to go beyond the claim or notice of intention in order to be able to investigate an occurrence or to obtain information necessary for such an investigation to occur” (see Lepkowski v. State of New York, 1 NY3d 201, 208). While the statute does not require “absolute exactness,” it does require a statement made “with sufficient definiteness to enable the State to investigate the claim promptly and to ascertain its liability under the circumstances” (id. at 207, quoting Heisler v. State of New York, 78 AD2d 767 [4th Dept 1980]; see Triani v. State of New York, 44 AD3d 1032, 1032 [2d Dept 2007]). The statute further states that a notice of intention to file a claim “shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated.” It is well established that the failure to satisfy the substantive pleading requirements of Court of Claims Act §11 (b) is a jurisdictional defect that requires dismissal of the claim (see Kolnacki v. State of New York, 8 NY3d 277, 280-281 [2007]; Lepkowski at 206-207; Czynski v. State of New York, 53 AD3d 881, 882-883 [3d Dept 2008], lv denied 11 NY3d 715 [2009]). Sufficiency under Section 11 (b) is subject to strict scrutiny (see Lepkowski at 207). The Court will first address the sufficiency of the notice of intention. The eleventh affirmative defense alleges that the notice of intention did not comply with Court of Claims Act §11 (b) when it was served and, thus, did not extend the time for filing the claim pursuant to Court of Claims Act §10 (3). Section 10 (3) requires that a claim for personal injuries due to negligence by the State be commenced within 90 days after the claim accrues, or within two years of accrual, if claimant has served a notice of intention within the 90-day time period. Where claimant has failed to meet the statutory prerequisites, the claim must be dismissed for lack of jurisdiction (see Kolnacki at 281; Welch v. State of New York, 286 AD2d 496, 497-498 [2d Dept 2001]). It is undisputed that claimant served the notice of intention within the 90-day period. However, the claim was filed on August 6, 2020, more than a year after the accrual date. Therefore, even if the claim is sufficient under Section 11 (b), it must be dismissed for lack of jurisdiction due to untimeliness if the notice of intention is found to be deficient. The notice of intention sets forth the following information about where and when the accident occurred: “On or about May 13, 2019, at approximately 3:40 p.m., claimant NICHOLAS URSINI was walking upon a grassy common pathway emanating from between buildings designated dormitory AV-2 and AV-3, en route to Parking Lot East-5, at the SUNY/Purchase College Alumni Village residences in Purchase, New York, adjacent to East Loop, and was injured when he was caused to trip and fall due to a defective, dangerous and hazardous condition of a portion of the grassy common pathway which was uneven, unlevel, disrupted, depressed, raised, concave, worn and receding. The defective, dangerous and hazardous condition was located approximately 99 feet 4 inches south of the north end of the building designated dormitory AV-3 and approximately 241 feet 8 inches north of the south end of the building designated dormitory AV-1, approximately 15 feet 9 inches east of a drain covering thereat and approximately 29 feet 11 inches west of the westerly curb…located on the westerly curb line of Parking Lot East-5. […] Attached hereto are color copies of four (4) photographs depicting the subject accident location and defective condition.” The notice of intention provides the “specificity in the description of the location of the incident” that is required where, as here, the alleged defect is in an open setting (Wilson v. State of New York, 35 Misc 3d 227, 231 [Ct Cl 2011] [finding specificity of "heightened significance" where defect is in open setting]). Indeed, the notice of intention provides a detailed description of the grassy area on the SUNY/Purchase campus that includes measurements in feet and inches of the distance from specified buildings, a drain, and a curb to the alleged defect in the ground. The four photographs attached to the notice of intention also show the alleged defect, a depression in the grassy area with what appears to be a grate at the bottom of the depression.3 In its opposition, the State does not argue that the measurements set forth in the notice of intention indicate a spot other than the one shown in the photographs. Rather, the State argues that the description is contradictory because the photographs show a grassy hill instead of a “grassy common pathway” and the description of the defect refers to it being both “depressed” and “raised” (Ex. 3). The State’s attorney’s characterization of the grassy area as a hill is not inconsistent with the description of it as a common pathway, and regardless of the characterization, the area was sufficiently identified so as to allow the State to investigate. In that regard, irrespective of the characterization of the alleged defect, the Court finds that the description of the location satisfies the requirements of Court of Claims §11 (b). Service of the notice of intention triggered the two-year extension of time to file the claim. As such, the eleventh affirmative defense is without merit as a matter of law. The first and twelfth affirmative defenses challenge the sufficiency of the claim under Court of Claims §11 (b). As a threshold matter, the copy of the claim attached as Exhibit 5 to the motion differs from the copy of the claim that was filed with the Court. The claim attached as Exhibit B to the State’s opposition is the same as the claim filed with the Court.4 Claimant’s submission of the wrong claim with the motion does not warrant denial of the motion to dismiss the first and twelfth affirmative defenses, as the State provided the Court with a copy of the claim that was filed with the Court and has not been prejudiced by claimant’s oversight. The first affirmative defense alleges that the claim fails to specify the State’s conduct and the manner in which the claim arose, in violation of Section 11 (b). “[C]onclusory or general allegations of negligence that fail to [state] the manner in which the claimant was injured and how the State was negligent do not meet [the statute's] requirements” (Kimball Brooklands Corp. v. State of New York, 180 AD3d 1031, 1032 [2d Dept 2020], quoting Wharton v. City Univ. of N.Y., 287 AD2d 559, 559 [2d Dept 2001] [internal citations omitted]). The claim (at
