Cain v State of New York

[*1] Cain v State of New York 2006 NY Slip Op 50404(U) [11 Misc 3d 1066(A)] Decided on March 1, 2006 Ct Cl Patti, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 1, 2006
Ct Cl

Ngina N. Cain, Claimant

against

The State of New York, Defendant



110724



Claimant's attorney:NGINA N. CAIN, Pro Se

Defendant's attorney:HON. ELIOT SPITZER

Attorney General of the State of New York

BY: THOMAS G. RAMSAY, ESQ.

Assistant Attorney General

Philip J. Patti, J.

Upon the foregoing papers, the cross-motion is denied and the motion is granted to the extent noted.

In Motion No. M-70782, the Claimant moves to strike the affirmative defenses of the Defendant as they pertain to her notice of intention to file a claim (NI). While Claimant suggests that the allegations in the affirmative defense(s) are that the notice of intention was untimely, the Defendant's cross-motion to dismiss clarifies its position. The Defendant asserts that the NI fails to comply with the requirements of Court of Claims Act §11(b) that it contain the time when and place where the claim arose, and since the claim was not served within 90 days of the accrual of the cause of action, the claim cannot rely upon the NI to extend Claimant's time to file (Court of Claims Act §10[3]) and is thus untimely. Moreover, says the State, the claim itself does not satisfy the time when and place where requirements of Section 11(b) of the Court of Claims Act. The State also contends that the claim fails to state a cause of action and that no negligent or intentional conduct is alleged. Hence, says the State, the claim must be dismissed.

The cross-motion is denied in its entirety.

First I consider this claim, filed by a pro se inmate, which recites that her address at the time of filing the claim was the Albion Correctional Facility. It alleges that: 3. The time and place where such claim arose and the nature of this claim is as follows:a. On or about September 28, 2004, after claimant finished using the bathroom, claimant slipped on water that was on the bathroom because of the leaking toilets, and grabbed on the bathroom door to prevent falling. However, as claimant was falling, claimant's right hand ring finger got stuck in the bathroom door. Claimant did not fall due to Claimant's finger being stuck in the bathroom door. However, claimant severely hurt claimant's finger.b. Due to the leaking toilets, which created the wet bathroom floor, [*2]claimant suffered from a swollen, red, bruised, disfigured finger....

**** e. It was the duty of the defendant to follow a certain standard of conduct for the protection of unreasonable risks. Defendant was aware of the leaking toilets in dormitory N-2 prior to claimant's injury and after claimant's injury. Work orders to maintenance were filled out for the leaking toilets. The toilets in dormitory N-2 are still leaking.

In first considering the adequacy and sufficiency of the claim itself, I wonder just what issues the Defendant is raising. The information quoted above from the claim provides allegations of the date and place (the N-2 dormitory toilets), that the Defendant was on notice of the leaking toilets and that they were still leaking, that Claimant slipped on water from the leaking toilets and was injured as a result of such slip. In its cross-motion and its fifth affirmative defense, Defendant contends that the claim fails to state a cause of action as no negligent or intentional conduct is asserted that would give rise to a claim in tort, but I note that the claim asserts that the Defendant was aware of leaking toilets in the N-2 dormitory prior to Claimant's injury, that work orders were filled out, and that, at least at the time of the filing of the claim, the toilets were still leaking. Even without allowing for Claimant's pro se status and perhaps a more expansive view of the pleadings in light thereof, it appears to me that the allegations are that the State was on notice of a dangerous condition, that it either negligently attempted or negligently failed to remedy said dangerous condition and that Claimant was injured as a result of such negligence. Whether Claimant could prove such allegations remains to be seen, but for pleadings purposes, a cause of action is stated.

While it may be vaguely supportable and necessary to preserve for the record, the State's suggestion that the notice of intention and the claim fail to satisfy the "time when and place where" requirements of Section 11(b) of the Court of Claims Act (see the third and sixth affirmative defenses) borders on the frivolous. Defendant focuses on two issues: place and time. As to place, the claim recites the facility at which Claimant was incarcerated and the bathroom in the N-2 dormitory. To the extent that Defendant relies upon Santiago v State of New York (Ct Cl, Claim No. 107166, Motion No. M-69030, Nov. 16, 2004, Hudson, J.) (Exhibit B to Defendant's cross-motion), it is misplaced. In Santiago, the Court noted that the claim failed to identify the place within the prison where the alleged assault took place. At the very least, the instant claim recites the specific dormitory and specifies the bathroom. To the extent that Defendant suggests that the claim, and for that matter the NI, fail to identify the correctional facility where the alleged incident took place, such argument strikes me as vacuous. The incident apparently did occur at the only correctional facility recited within the verified NI and the claim, the facility at which Claimant resided when she prepared both documents. Had the incident taken place at another facility, from which Claimant had been transferred between the date of the incident and the dates of the NI and the claim, then there would be a cogent validity to the argument.

The Defendant's next ground for dismissal is likewise flawed. Defendant argues that "the incident in question did not take place on September 27, 2004 at all, but rather on a different day" [*3](¶15, affirmation in support of cross-motion). Defendant then references its answers to interrogatories dated September 22, 2005, and Claimant's notice of interrogatories dated October 5, 2005. This is somewhat stupefying to me. First and foremost, the claim and the NI both allege that the incident took place "[o]n or about September 28, 2004" (emphasis supplied). In its answer to interrogatory No. 2, the Defendant denies that Claimant was injured on September 28, 2004, and in response to interrogatory No. 3, answers that "a Report of Inmate Injury was completed concerning an injury on September 27, 2004."[FN1] Given that the claim itself alleges "on or about September 28, 2004," I am hard pressed to find the claim or the NI inadequate as to the time when this incident allegedly occurred. While there obviously will be issues as to if and when the Defendant was put on notice of the leaking toilets and whether it was given an adequate period of time to address such report, the date of Claimant's purported incident is fully documented as Defendant noted in its answer to interrogatory No. 3. The Defendant's argument here has little or nothing to do with jurisdictional infirmities, but rather with questions of proof.

Now addressing the sufficiency of the NI, my discussion above with respect to the time when the alleged incident took place resolves the question of the date. But going further, if Defendant is implying that the NI, and for that matter the claim, are deficient (to wit, fail the "time when" test) because they lack the hour of the incident, such argument is rejected. Defendant provides no legal support for dismissal of a claim because of a pleading infirmity for omitting the hour or minute of a claim's accrual.

As to the purported deficiency in naming the place where the claim arose, I have already found that Claimant sufficiently named the facility where she resided, and thus the facility where she alleged the incident to have occurred. In the NI she also specified that the incident took place in the bathroom, at the bathroom door, but does not specify the N-2 dormitory.

I have previously addressed questions regarding notices of intention, noting that: The purpose of a notice of intention is to give the State prompt notice of an occurrence and an opportunity to investigate the facts to determine potential liability (Heisler v State of New York, 78 AD2d 767), and consequently, it must identify the location of the accident sufficiently to enable the Defendant to conduct a meaningful investigation (Grande v State of New York, 160 Misc 2d 383). It is true that the notice of intention is not a pleading and therefore need not state all of the elements of a cause of action or list items of damages (Bensen v State of New York, 88 Misc 2d 1035; Barrett v State of New York, 85 Misc 2d 456), and it is not to be scrutinized under the standards applicable to a pleading (Sega v State of New York, 246 AD2d 753). Still, to achieve its central purpose, the document must apprise the State of the general nature of the claim; contain some meaningful reference to the factual basis of the claim so as to permit investigation; and identify the defect or wrongful [*4]actions by State officials that will allegedly give rise to liability (Schwartzberg v State of New York, 121 Misc 2d 1095, 1099-1100, affd 98 AD2d 902; Williams v State of New York, 77 Misc 2d 396).

(Allen v State of New York, Ct Cl, UID #2001-013-032, Claim No. 103513, Motion Nos. M-63467 and CM-63604, Dec. 31, 2001.)[FN2]

More recently, in Klos v State of New York (19 AD3d 1173), where a notice of intention prepared by a pro se inmate under the care and custody of Defendant was found to be sufficiently specific to provide Defendant with timely notice to investigate the claim and not to be scrutinized under the standards applicable to a pleading (Sega v State of New York, 246 AD2d 753), the Appellate Division Fourth Department affirmed, observing that: The notice of intention specified the date and general location of the incident as well as the manner in which claimant was injured, and thus we conclude that the notice set forth the requisite factual basis for defendant's alleged liability (see Rhodes v State of New York, 245 AD2d 791, 792 [1997]). The general manner in which defendant was alleged to have been negligent could be inferred from the foregoing description (see Rhodes, 245 AD2d at 792; Ferrugia v State of New York, 237 AD2d 858, 859 [1997]), thereby enabling defendant to conduct a prompt investigation of the claim and to ascertain its liability, if any (see Rodriguez, 8 AD3d at 648; Sinski, 265 AD2d 319 [1999]; Rhodes, 245 AD2d at 792; Ferrugia, 237 AD2d at 859; Epps v State of New York, 199 AD2d 914 [1993]).

(Klos v State of New York, 19 AD3d 1173, 1174.)

Inmates are under the complete care, custody and control of the Defendant. Their actions are constantly monitored, and the Department of Correctional Services maintains an extensive paper record of incidents, injuries, medical care, etc. The allegations of the notice of intention here enabled "defendant to conduct a prompt investigation of the claim and to ascertain its liability, if any [citations omitted]" (id. at 1174).

Accordingly, the cross-motion to dismiss is denied. While the Claimant's motion sought to strike the affirmative defense that the notice of intention was untimely, based upon the decision above, it is granted to the extent that the Defendant's Third, Fifth and Sixth affirmative defenses are stricken.

Appendices: Footnotes

Footnote 1:This response comes from an interrogatory inquiring about Claimant's injuries. While it does not specifically state that the September 27, 2004 injury report pertains to Claimant, for purposes of this discussion, I will deem it so.

Footnote 2:Decisions and selected orders of the New York State Court of Claims are available on the Internet at www.nyscourtofclaims.state.ny.us.