The court finds that the sixth affirmative defense is utterly without factual or legal basis and it is stricken by 0K3gdl

VIEWS: 9 PAGES: 4

									DEAN v. THE STATE OF NEW YORK, #2006-036-555, Claim No. 111678, Motion No.
M-71493

                                            Synopsis

Affirmative defenses that claim failed to adequately specify the location this false arrest claim
accrued or the nature of the claim, as required by Court of Claims Act section 11(b), are without
merit and are stricken from the answer.

                                       Case Information

UID:                                 2006-036-555

Claimant(s):                                              1
                                     GUENEVERE DEAN
Claimant short name:                 DEAN

Footnote (claimant name) :
Defendant(s):                        THE STATE OF NEW YORK

Footnote (defendant name) :          The caption has been amended to properly reflect the defendant.

Third-party claimant(s):
Third-party defendant(s):

Claim number(s):                     111678

Motion number(s):                    M-71493
Cross-motion number(s):

Judge:                               MELVIN L. SCHWEITZER

Claimant’s attorney:                 GAFFIN & MAYO, P.C.
                                     By: Christopher Morik, Esq.
Defendant’s attorney:                ELIOT SPITZER, ATTORNEY GENERAL
                                     By: Victor D’Angelo, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:                      September 20, 2006

City:                                New York

Comments:

Official citation:
Appellate results:
See also (multicaptioned case)


                                              Decision
         This is claimant’s motion to strike two affirmative defenses from the answer: the sixth –
alleging the court lacks jurisdiction over the claim because both the notice of intention and the
claim fail to comply with Court of Claims Act § 11(b) by failing to include an adequate
description of the place where the claim accrued or the “manner in which the incident occurred”
(Answer, ¶ Ninth), and the eighth – alleging that the claim fails to comply with Rule 206.6(b) of
the Uniform Rules for the Court of Claims. 2
         In its opposition papers, defendant withdraws the eighth affirmative defense which, in any
event, raises an issue that is not jurisdictional (see, Kern v State of New York, 12 Misc3d 455
[2006] fn 2; Hamilton v State of New York, 11 Misc3d 650 [2005]; Pryce v State of New York, Ct
Cl, Fitzpatrick, J., Claim No. 109542, M-69131; UID No. #2005-018-459 [2005]). Defendant
does oppose the motion to strike the sixth affirmative defense, arguing that the alleged defects in
the notice of intention and the claim render those documents “jurisdictionally defective.”
Despite taking that position in opposition to claimant’s motion to strike, defendant has not
cross-moved to dismiss the claim for lack of jurisdiction.
         The claim alleges that on December 12, 2004 at about 2:30 a.m., claimant was falsely
arrested and imprisoned and charged with attempted theft of services and resisting arrest in front
of the State of New York Maritime Facility in the Bronx by New York State Police Officer
Joseph Walsh, Shield No. 462, who at the time was working as a security officer at the SUNY
Maritime facility. The claim further alleges that claimant was detained until her arraignment in
Criminal Court, Bronx County at about 2:00 p.m. on December13, that she seeks damages
amounting to $1 million for 36 hours of confinement, emotional distress, medical expenses, lost
earnings and legal fees, and that she served a notice of intention to file a claim on the Attorney
General on March 9, 2005, which the court notes is within 90 days of accrual (Court of Claims
Act § 10(3-b).
         Neither party attached a copy of the notice of intention to its motion papers. Since
defendant does not contend that the claim was untimely, it apparently concedes that it was timely
served with the notice of intention. The reference in the affirmative defense at issue implies that
the language of the notice of intention and that of the claim were the same, and the court will
proceed on that basis since the claim is the only document before the court.
         Court of Claims Act §11 (b) requires that a claim set forth the time when and place where
it accrued, the nature of the claim, the items of damage and the total sum claimed. The “guiding
principle” when a claim or notice of intention is challenged as falling short of the statutory
standard is whether the contents of the document provided sufficient information “to enable the
State . . . to investigate the claim[s] promptly and to ascertain its liability under the
circumstances” (Lepkowski v State of New York, 1 NY3d 201, 207 [2003] quoting Heisler v State
of New York, 78 AD2d 767 [4th Dept 1980] 3; see also Kolnacki v State of New York, 28 AD3d
1176 [4th Dept 2006]; Morris v State of New York, 27 AD3d 282 [1st Dept 2006]; Hamilton v
State of New York, 11 Misc3d 650, supra.).
         In support of its contention that the claim’s identification of the “place where” the claim
accrued (Court of Claims Act § 11 [b]) is insufficient, other than Heisler, which does not support
its position, defendant cites only two cases, neither of which has any application to the claim
before the court – a decision affirming the dismissal of a breach of contract claim on grounds of
untimeliness which does not address the issue of the place where the claim accrued (Park v State
of New York, 226 AD2d 153 [1st Dept 1996]), and a decision affirming the denial of a motion to
amend a notice of claim served pursuant to the General Municipal Law because the original
notice failed to specify the location of the accident with sufficient particularity and amendment
14 months after the accident would cause substantial prejudice to the city (Blank v City of New
York, 137 AD2d 577 [2nd Dept 1988]). That decision is not instructive as to what type of
accident was involved, what the location was or how it was described in the notice.
         In support of its contention that the claim herein does not contain “any adequate
description of the manner in which the incident occurred” (Answer, ¶ Ninth; language that is not
derived from the statute which rather requires that a claim or notice of intention set forth its
“nature” [Court of Claims Act § 11(b)]) defendant also cites two cases that are inapposite. In
Stukes v State of New York (Ct Cl, Marin, J., Claim No. 109918, M-71000, CM-71060, [2006],
the court held that a medical malpractice claim with “not a single specific fact alleged” (id., 2)
had to be dismissed for lack of jurisdiction because “without any descriptive information, the
State cannot investigate the claim” (id.) and in Karen v State of New York (111 Misc 2d 396
[1981]), a false arrest and imprisonment claim was dismissed for noncompliance with § 11(b)
because it contained “no indication when the claimants were released, or even arrested” (id.,
398).
         Here, the claim specifically and clearly sets forth the place where claimant was arrested,
the name and badge number of the State employee effecting the arrest, the time she was arrested,
the time she was released, the crimes she was charged with and the court where she was
arraigned. Defendant’s contention that this information is insufficient is unsupported by a
contention that defendant was unable to investigate claimant’s allegations, much less a factual
demonstration in support of such a contention (cf. Cannon v State of New York, 163 Misc 2d 623
[1994]; Partridge v State of New York, Ct Cl, Patti, J., Claim No. 90710, M-62089 [2001]; Kerr
v State of New York, Ct Cl, Read, P.J., Claim No. 105574, M-65237 [2002]; Turpin v State of
New York, Ct Cl, Read, P.J., Claim No. 92485, M-58816 [1999]).
         The court finds that the sixth affirmative defense is utterly without factual or legal basis
and it is stricken.




                                                                                 September 20, 2006
                                                                                 New York, New York

                                                                     HON. MELVIN L. SCHWEITZER
                                                                       Judge of the Court of Claims




1.The caption has been amended to properly reflect the defendant.

2.The court considered the Notice of Motion, Affirmation and Exhibits, the Affirmation in
Opposition and Exhibits and the Reply Affirmation.

3.Defendant’s characterization of the Heisler holding is perplexing. The Affirmation in
Opposition herein describes the result in Heisler as : “Claimant failed to provide an adequate
description of exactly where the incident alleged in the claim occurred” (¶ 4). In fact, the Fourth
Department held precisely the opposite : “Examining the notice in this case reveals that it states
the date, time and place of the mishap and that the polling place ‘is under the supervision of the
Erie County Board of Elections ... the Town of West Seneca ... and the West Seneca Central
School District ... all acting pursuant to obligations imposed by the State of New York.’ It further
alleges that Mrs. Heisler fell and fractured her right leg ‘at approximately 8:45 p.m. and as a
result of proof and inadequate lighting and improper maintenance of the exterior premises’. This
notice of intention substantially complied with the statute because it states the time, place, nature
of the claim, injuries and total sum claimed. The State was thus adequately notified so that it
could take such immediate investigative action as it deemed necessary. The manner in which
claimant was injured and how the defendant was negligent were stated or can be reasonably
inferred” (78 AD2d 768).

								
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