Court of Claims – Page 13 – New York Appellate Digest

In Court of Claims Case, Inability to Prove State Was Served with Notice of Claim Required Dismissal

In affirming the Court of Claims’ dismissal of a claim because claimant was unable to demonstrate the state was properly served, the Third Department explained the relevant law as follows:

“A claimant seeking to recover damages for personal injuries caused by the negligence . . . of an officer or employee of [defendant] must file and serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof”…. Both filing with the court and service upon the Attorney General must take place within the relevant statutory period … and, as suits against defendant are permitted only by virtue of its waiver of sovereign immunity and are in derogation of the common law, “the failure to strictly comply with the filing or service provisions of the Court of Claims Act divests the court of subject matter jurisdiction”…. Notably, “a defect in subject matter jurisdiction may be raised at any time, even for the first time on appeal, because it relates to the competence of the court to consider [the] matter”… .and, therefore, such defect “cannot be overlooked or remedied by either waiver or estoppel” … . Caci v State of New York, 515844, 3rd Dept, 6-6-13

BICYCLES

June 6, 2013

Court of Claims, Employment Law, Immunity, Negligence

Notice of Claim (Pursuant to Court of Claims Act) Not Specific Enough

The Third Department upheld the Court of Claims’ dismissal of a claim because the notice of claim was not specific enough. In describing the statutory criteria, the Third Department wrote:

Pursuant to Court of Claims Act § 11 (b), a claim must set forth the nature of the claim, the time when and place where it arose, the damages or injuries and the total sum claimed. “Because suits against [defendant] are allowed only by [defendant’s] waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed”…. Although “absolute exactness” is not required…, the claim must “‘provide a sufficiently detailed description of the particulars of the claim to enable [defendant] to investigate and promptly ascertain the existence and extent of its liability'” … . Morra v State of New York, 515751, 3rd Dept, 6-6-13

NEGLIGENT SUPERVISION, EMPLOYEE

June 6, 2013

Court of Claims, Employment Law, Human Rights Law

Elements of Retaliatory Termination Described

The Second Department explained the elements of retaliatory termination as follows:

Pursuant to Executive Law § 296, it is unlawful to retaliate against an employee because he or she opposed statutorily forbidden discriminatory practices …. To make a prima facie showing of retaliation under Executive Law § 296, a claimant is required to show that (1) the claimant was engaged in protected activity, (2) the claimant’s employer was aware that he or she participated in such activity, (3) the claimant suffered an adverse employment action based upon his or her activity, and (4) there was a causal connection between the protected activity and the adverse action …. Once this initial showing is made, the burden then shifts to the defendant to present legitimate, independent, and nondiscriminatory reasons to support its actions. Assuming the defendant meets this burden, the claimant would then have the obligation to show that the reasons put forth were merely a pretext … . Adeniran v State of New York, 2013 NY Slip Op 03441, 2nd Dept, 5-15-13

May 15, 2013

Court of Claims, Immunity, Negligence

2 ½ Inch Drop in Pavement Was Not Proximate Cause of Plaintiff’s Loss of Control of Her Vehicle

The Fourth Department affirmed the Court of Claims’ determination that a 21/2 inch drop off in the shoulder of a road was not the proximate cause of a driver’s losing control of her vehicle. The doctrine of “qualified immunity” in connection with road defects is explained. Marrow… v State…, CA 12-00974, 241, 4th Dept, 4-26-13

TRAFFIC ACCIDENTS

April 26, 2013

Court of Claims, Evidence, Negligence

Hearsay About Cause of Fall Included in Hospital Report Should Not Have Been Presented to the Jury

In reversing a jury verdict in favor of the defendant, the First Department held that a hearsay statement about the cause of the plaintiff’s fall, contained in a hospital report, should not have been presented to the jury:

Generally, admissions not germane to the treatment or diagnosis of a plaintiff’s injuries are not admissible under the business records exception to the hearsay rule … . A hearsay entry in a hospital record as to the cause of an injury may be admissible at trial even if not germane to diagnosis, if the entry is inconsistent with a position taken at trial. However, there must be evidence that connects the party to the entry … .

…[P]laintiff testified that she slipped on a metal bracket protruding from a subway step. The hospital record indicating that she slipped on wet ground should not have been presented to the jury since there was no proper foundation for its admission, inasmuch as it was unclear whether plaintiff was the source of that information … . Indeed, plaintiff testified that she did not tell the orthopedic surgeon that she slipped on a wet surface. The admission of the hospital record thus was not harmless error since it went to the crux of plaintiff’s allegations. [Defendant’s] primary defense was that plaintiff slipped on wet ground, and not from its negligence … . Grant v New York City Tr Auth, 3013 NY Slip Op 02318, 9211, 305841/08, 1st Dept 4-4-13

SLIP AND FALL

April 4, 2013

Civil Rights Law, Correction Law, Court of Claims, Negligence

1983 Action Against Department of Corrections Is Not Brought in the Court of Claims

The Third Department, in a decision by Justice Garry, reversed Supreme Court’s dismissal of a 1983 action against employees of the Department of Corrections and Community Supervision challenging a urinalysis report:

Supreme Court found that it lacked jurisdiction based upon Correction Law § 24, which requires that actions alleging negligence by state correction officers be commenced in the Court of Claims; however, it has been established that this provision may not be applied to bar actions brought pursuant to 42 USC § 1983 … . Carrington v Moore, 513818, 3rd Dept 3-28-13

March 28, 2013