Moravec v City Univ. of N.Y.
Annotate this CaseDecided on May 5, 2011
Ct Cl
Gwyneth Barbara Moravec, Claimant,
against
The City University of New York, Defendant.
115211
APPEARANCES:
For Claimant:
Sal A. Spano, Esq.
For Defendant:
Eric T. Schneiderman, Attorney General
By: Ellen S. Mendelson, AAG
Alan C. Marin, J.
This is the decision on the motion of Gwyneth Barbara Moravec to amend her claim so that it will describe her trip-and-fall accident as occurring while walking down the "second" set of stairs, instead of the "third" set of stairs, as she was leaving the Performing Arts Center of Queens College on June 17, 2006.[FN1]
The motion is opposed by defendant City University of New York, which cross-moves to dismiss, contending that the claim as originally filed does not comply with subdivision b of §11 of the Court of Claims Act (the "Act"). Subdivision b provides that a claim for personal injury [*2]shall "state the time when and place where such claim arose, the nature of same [and] the items of damage or injuries . . ." Failure to comply with §11.b is jurisdictionally fatal although a party can seek permission to file a late claim under §10.6 of the Act subject to the applicable statute of limitations under Article 2 of the CPLR. Kolnacki v State of New York, 8 NY3d 277 (2007).
A jurisdictional infirmity cannot be remedied by amendment; thus, claimant's motion must be decided with reference to the so-called four corners of the original claim. Nasir v State of New York, 41 AD3d 677 (2d Dept 2007); Grande v State of New York, 160 Misc 2d 383 (Ct Cl 1994). According to the claim as first presented, which attached photographs of the site from a number of vantages: -
The incident "occurred on June 17, 2006 at approximately 11:30 p.m. upon a stairway leading to the entrance of the premises known as the Performing Arts Center at Queens College located at Reeves Avenue with its intersection with 61 Road, Borough of Queens . . ." Claim, ¶4. -
Claimant was "on the third set of stairs walking down [from the] entrance . . . when she was caused to trip and fall as a result of a defective and dangerous condition, to wit: steps which were broken, cracked, defective with raised portions and violation of applicable building codes, and as a result of the poorly maintained step existing thereat, as well as poor lighting conditions." Id. ¶¶3 and 4.
***
When a claimant's cause of action arises from a fall on stairs or a staircase, what level of detail in her pleadings is required to satisfy §11.b of the Act? Before turning to Ms. Moravec's claim, consider two situations. First, identifying the specific step itself is not required under §11.b; as a practical matter, the dynamics of a fall may involve more than one step. Paul v State of New York, Ct Cl, March 14, 2008 (unreported, Claim No. 109802, UID No.2008-031-501, Minarik, J.). At the other end of the specificity range, there is a failure of compliance with §11.b if a claim does not identify which stairway was involved where a building has more than one stairway, such as ones denominated north and south. See, e.g., Riefler v State of New York, 228 AD2d 1000 (3d Dept 1996); Lightbody v State of New York, Ct Cl, August 7, 2002 (Claim No. 104183, Motion Nos. M-65146 and CM-65478, UID No.2002-016-080, Marin, J.).
Ms. Moravec fell on a long exterior stairway broken into groups or sets of steps by a series of landings. The claim, as set out above, states that the steps were "broken, cracked, defective with raised portions." Is a pleading that describes the location where the claim arose by the set of steps between two landings compliant with §11.b?[FN2] Moreover, is a pleading, such as this, that states the incorrect set of steps compliant with §11.b?
The parties have advanced no case law directly on point. The Court of Appeals has stated that the "guiding principle informing section 11(b)" is that a claim be sufficiently definite "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), citing Heisler v State of New York, 78 AD2d 767 (4th Dept 1980). "Absolute exactness" is not required. See [*3]Acee v State of New York, 81 AD3d 1410 (4th Dept 2011); Triani v State of New York, 44 AD3d 1032 (2d Dept 2007). I find that under the foregoing standard, the original Moravec claim is in compliance with §11.b of the Act, and accordingly may be amended per CPLR 3025(b).
In view of the foregoing, having reviewed the submissions of the parties,[FN3] IT IS ORDERED that Motion No. M-78565 be granted, that Cross-Motion No. CM-79549 be denied, and that claimant serve and file her amended claim within forty-five (45) days of the filing of this Decision and Order.
New York, New YorkALAN C. MARIN
May 5, 2011Judge of the Court of Claims
Footnotes
Footnote 1: This motion originally had a return date of July 21, 2010, the day the liability trial in this matter began. The motion was held in abeyance as the trial was continued due to the illness of a witness to December 21, 2010. On that day, at the close of trial, the parties agreed that this motion should be decided before post-trial submissions were made.
Footnote 2: For the purposes of §11.b, the stairs involved here are clearly distinguishable, for example, from a building's interior fire stairway that goes from the top floor to the ground floor, for which the location of an incident would presumably need, at a minimum, to be described as occurring between two particular adjacent floors.
Footnote 3: The following submissions were reviewed: claimant's Notice of Motion with Affirmation in Support and exhibits A through F; defendant's Notice of Cross-Motion with Affirmation in Opposition and In Support of Cross-Motion with exhibits A & B; claimant's Affirmation in Reply and in Opposition to Cross-Motion with exhibit A; and Defendant's Reply Affirmation.
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