Opinion
# 2013-028-542 Motion No. M-83644
12-10-2013
MANDY NOWACKI and EMMANUEL NOWACKI v. THE STATE OF NEW YORK
Synopsis
Movants have submitted an inadequate proposed claim and the motion to late file is denied without prejudice to re-submission on proper papers.
Case information
UID: 2013-028-542 Claimant(s): MANDY NOWACKI and EMMANUEL NOWACKI Claimant short name: NOWACKI Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): NONE Motion number(s): M-83644 Cross-motion number(s): Judge: RICHARD E. SISE DASH LAW FIRM, P.C. Claimant's attorney: BY: Greta Boldi, Esq. HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL Defendant's attorney: BY: Theresa N. Wilson, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: December 10, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The following papers were read on Movants' motion for permission to late file an untimely claim pursuant to Court of Claims Act § 10 (6):
1. Notice of Motion and Supporting Affirmation of Greta Boldi, Esq., with annexed Affidavit of Mandy Nowacki and annexed Exhibits; and
2. Affirmation in Opposition of Theresa N. Wilson, AAG
Filed papers: None
Movants' proposed claim alleges that their cause of action arose on February 5, 2013, on the Long Island Expressway near Exit 41 N (Routes 106/107) at approximately 3:40 p.m. That is about all the information that is contained in the proposed claim.
It is not clear from the document exactly what occurred at that time and place, other than that the injured party was Movant Mandy Nowacki and a State vehicle (possibly a vehicle belonging to the Department of Transportation since that agency is referenced) was involved in causing her injuries. There is no indication in the proposed claim whether she was a pedestrian, driving another vehicle, or passenger in either the State vehicle or another vehicle. Other than the information about time and place and reference to a State vehicle, the proposed claim contains only a single, extended general statement of all the ways in which the driver of the State vehicle may have been at fault: operating the vehicle negligently and carelessly, failing to maintain control of the vehicle, driving at an excessive rate of speed, failing to use brakes, failing to use signaling devices and steering mechanisms, failing to keep a proper lookout, failing to yield right of way, causing the accident, and failing to take suitable precautions to avoid the accident, and others.
In short, this proposed claim does not meet the pleading requirements of any of the applicable statutes: CPLR 3013 ("Statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense."); CPLR 3014 ("Every pleading shall consist of plain and concise statements in consecutively numbered paragraphs. Each paragraph shall contain, as far as practicable, a single allegation; or Court of Claims Act § 11 (b) ("The claim shall state the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and . . . the total sum claimed." [emphasis supplied]).
Under New York rules of procedure, conclusory averments of wrongdoing are insufficient to sustain a complaint unless supported by allegations of ultimate facts (Vanscoy v Namic USA Corp., 234 AD2d 680, 681 [3d Dept 1996], quoting (Muka v Greene County., 101 AD2d 965 [3d Dept 1984], appeal denied 63 NY2d 610 [1984]), since "conclusory allegations without supporting factual allegations" do not satisfy the requirements of the CPLR (84 NY Jur 2d, Pleading § 20). As one respected commentor has explained, when the CPLR was adopted, the word "facts" was taken out and replaced with "statements" to avoid association with some of the rigidities of prior law, but nevertheless "[p]leadings are most certainly still composed mainly, if not entirely, of factual allegations" (Patrick M. Connors, Practice Commentaries [McKinney's Cons. Laws of NY, Book 7B, CPLR C3013:4]). The chief difference is that under CPLR 3013 it is possible to include references to legal theories in the pleadings "if the facts upon which the pleader relies are also stated" (id.).
In this instance, of course, additional information about the "transactions or occurrences" that underlie the claim have been provided to the Court and to Defendant in the numerous supporting documents submitted on the motion. Nevertheless, since complaints or claims that are "devoid of specific factual allegations" and do not "indicate the material elements of a claim and how they would apply to the case" may be dismissed as insufficient (Campbell v Barclays Bank PLC, 24 Misc 3d 1210 [A] [Sup Ct, Kings County 2009], quoting Megna v Becton Dickinson & Co., 215 AD2d 542 [2d Dept 1995]), it would be inappropriate, and futile, for the Court ot permit the filing of such an inadequate claim.
Consequently, Movants' motion is DENIED, without prejudice to a new motion being made on proper papers.
December 10, 2013
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims