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Liberty Mutual Ins. Co. v. State

Ct Cl

November 29, 2010

Liberty Mutual Insurance Company a/s/o LISA SOOKHOO, Claimant,
The State of New York, Defendant.

For Claimant: Carman, Callahan & Ingham, LLP, By: Susan C. Carman, Esq. and Christopher Persad, Esq.

For Defendant: Andrew M. Cuomo, Attorney General, By: John M. Hunter, AAG.


In this claim, Liberty Mutual Insurance Company alleges that on April 29, 2008, a Chevy van owned by the State and operated by an employee of the New York State Office of Mental Retardation and Developmental Disabilities [1] struck the 2006 Honda of claimant's subrogor, Lisa Sookhoo. Claimant moves for leave to serve an amended verified claim. Defendant cross-moves to dismiss on the ground that the claim fails to comply with §11 of the Court of Claims Act (the "Act") by not adequately describing — or more precisely, by misstating — the location of the accident, as well as by not adequately describing the manner in which it occurred.

Liberty Mutual seeks to make two changes to the claim, the first of which relates to the location of the accident. A New York City Police Report (MV-104AN), which was annexed to the notice of intention, indicates that the accident occurred at the intersection of 206th Street and 104th Avenue in Queens, and this is the location set forth in the claim. [2] Liberty Mutual states that it has learned that the accident actually occurred at 207th Street and 104th Avenue, and it thus seeks to amend the claim to refer to 207th Street instead of 206th Street.

Second, claimant seeks to add the following sentence regarding the occurrence of the accident: "Defendant had a stop sign and failed to stop and yield to the Plaintiff Subrogor's vehicle, who had the right of way."


Section 11(b) of the Act requires that a claim arising from personal injury state "the time when and place where such claim arose, the nature of same, [and] the items of damage or injuries claimed to have been sustained..." A failure to set forth any of the foregoing items renders a claim jurisdictionally defective. Kolnacki v State of New York, 8 N.Y.3d 277 (March 22, 2007).

In Kolnacki, defendant's motion to dismiss was granted because claimant failed to plead the "total sum claimed" as required by §11(b) as it existed at the time. The Legislature soon thereafter amended the statute to exclude that item, the result of which was that pleading damages in the Court of Claims more closely matched the practice for Supreme Court. Chapter 606 of the Laws of 2007 (August 15, 2007).

Two months later, the Second Department found that a claim, which described the location of a slip and fall as the sidewalk abutting Kingsboro Psychiatric Center at 681 Clarkson Avenue, was insufficiently specific:

Section 11(b) was recently amended to eliminate the requirement in certain types of cases, including personal injury cases, that the claim allege the total sum claimed... The recent amendment, however, leaves in place the remaining requirements of section 11(b), such as the requirement that the claim allege the place where it arose. The law continues to be that strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary...

Triani v State of New York, 44 A.D.3d 1032, 1032-33 (2d Dept October 30, 2007) (citations omitted).

That a "strict compliance" standard obtains with respect to §11(b) does not change the fact that determining whether a claim adequately describes a particular location will often be a close question, which, as a practical manner, can depend upon the nature of the claim. Triani reiterated what the Court of Appeals has termed "the guiding principle informing section 11(b)" -- that a claim should 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 N.Y.3d 201, 207 (2003), quoting Heisler v State of New York, 78 A.D.2d 767 (4th Dept 1980), which had also observed that §11(b) does not require "absolute exactness."

In Deep v State of New York, 56 A.D.3d 1260, 1261 (4th Dept 2008) (emphasis added), which involved a vehicular accident allegedly caused by the negligent driving of defendant's employee, the court found that "claimants' description of the specific street where the accident occurred was sufficient to allow defendant to investigate the claim in a prompt manner and to assess its potential liability (see Sinski v State of New York, 265 A.D.2d 319 [1999])." The Second Department in Sinski had reversed and reinstated a claim arising from a collision at an intersection. The ...

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