Opinion
# 2018-032-042 Claim No. 130077 Claim No. 130078 Motion No. M-91131 Cross-Motion No. CM-91635
07-09-2018
KEITH WOOLRIDGE v. THE STATE OF NEW YORK
Katter Law Firm By: Ronald J. Katter, Esq. Hon. Barbara D. Underwood, NYS Attorney General By: Lawrence E. Kozar, Assistant Attorney General, Of Counsel
Synopsis
Defendants' motion to dismiss the claim is denied. Claimants' notice of intention satisfied the requirements of Court of Claims Act § 11 (b).
Case information
| UID: | 2018-032-042 |
| Claimant(s): | KEITH WOOLRIDGE |
| Claimant short name: | WOOLRIDGE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 130077, 130078 |
| Motion number(s): | M-91131 |
| Cross-motion number(s): | CM-91635 |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Katter Law Firm By: Ronald J. Katter, Esq. |
| Defendant's attorney: | Hon. Barbara D. Underwood, NYS Attorney General By: Lawrence E. Kozar, Assistant Attorney General, Of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | July 9, 2018 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
FACTS
Claimants, in these virtually identical actions except for the total sum claimed, allege that between September 8, 2015 and October 4, 2015, they were injured by defendants' negligence in failing to inspect, install, repair, and clean water cooling towers and the water system located at the Bronx Psychiatric Center, while claimants were "in the vicinity" thereof (Castro Notice of Intention ¶¶ 2-3; Woolridge Notice of Intention ¶¶ 2-3). Claimants allegedly contracted Legionnaire's disease as a result of defendants' negligence (Castro Notice of Intention ¶ 4; Castro Claim ¶ 5a; Woolridge Notice of Intention ¶ 4; Woolridge Claim, ¶ 5a). Claimant Castro's Notice of Intention was served upon the Attorney General of the State of New York on January 4, 2016. Castro's Claim was filed with the Court on August 4, 2017 and served upon the Attorney General on August 30, 2017. Claimant Woolridge's notice of intention was served upon the Attorney General on December 22, 2015. Woolridge's claim was filed with the Court on August 4, 2017 and served upon the Attorney General on August 30, 2017. In lieu of filing an answer, defendant moved to dismiss the claims pursuant to CPLR 3211, without specificity on which subdivision, on October 3, 2017. The notice of motion indicates that it is based upon Court of Claims Act §§ 9 and 10. Defendant's argument in support of dismissal is based upon Court of Claims Act § 11 (b) and maintains that the claim is jurisdictionally defective because it does not specify where claimants were located "in the vicinity" of the Bronx Psychiatric Center when they were exposed to the bacteria. The original claims list the addresses of claimants. The claims also allege that the New York City Department of Health identified the Bronx Psychiatric Center as the source of a Legionnaire's outbreak during the time that the claimants were allegedly injured (Orlando Claim ¶ 4; Woolridge Claim ¶ 4). Claimants oppose the motion and cross-move for an order granting leave to amend the claim, or to file a late claim pursuant to Court of Claims Act 10 (b) (6).
Claimants filed amended claims as of right on January 8, 2018 (see CPLR 3025 [a]; CPLR 3211 [f]; STS Mgt. Dev. Inc. v New York State Dept. of Taxation and Fin., 254 AD2d 409, 410 [2d Dept. 1998]). Although claimants are correct that amended claims supersede the original claims when served as of right (D'Amico v Corr. Med. Care, Inc., 120 AD3d 956, 957 [4th Dept. 2014]), "the jurisdictional sufficiency of the original pleading must be established because a claim may not be amended to cure a jurisdictional defect in the Court of Claims" (Moore v State of New York, UID No. 2016-018-703 [Ct Cl, Fitzpatrick, J., Feb. 5, 2016], citing Nasir v State of New York, 41 AD3d 677, 677 [2d Dept. 2007]; Grande v State of New York, 160 Misc 2d 383, 385 [Ct Cl 1994]). Accordingly, the Court considers the jurisdictional sufficiency of the notices of intention and the original claims, not the amended claims.
Defendants also moved for summary judgment pursuant to CPLR 3212 according to the Notice of Motion, but appear to abandon that ground (Affirmation in Opposition to Cross Motion ¶ 4).
LAW AND DISCUSSION
Defendants argue that the notices of intention and claims are jurisdictionally defective because they fail to state with sufficient specificity the place where and manner in which the claim arose. Initially, the Court notes that both notices of intention were served within the 90-day limitation period required by Court of Claims Act § 10 (3). The Court further finds that the notices of intention and claims in each action meet the standards of Court of Claims Act § 11 (b). The purpose of the notice of intention is to provide the State with adequate information to investigate the claim (Morris v State of New York, 27 AD3d 282, 283 [1st Dept. 2006]), and to ascertain its liability under the circumstances (Wharton v City Univ. of New York, 287 AD2d 559, 559 [2d Dept. 2001]). A notice of intention must "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" (Court of Claims Act § 11 [b]). A claim must state the same information as the notice of intention, in addition to the total sum claimed (id.). Failure to abide by these pleading requirements constitutes a jurisdictional defect mandating dismissal of the claim (Kolnacki v State of New York, 8 NY3d 277, 280-281 [2007]).
The notices of intention state that the claim arose on or about September 8, 2015-October 4, 2015, when claimant was in the vicinity of the Bronx Psychiatric Center. The notice of intention listed both the addresses of the claimants as well as the address listing the address of Bronx Psychiatric Center, and specifically notes that the claim arose at "the water towers at that location" (Castro Notice of Intention ¶ 2; Woolridge Notice of Intention ¶ 2). It is not difficult to assess that the alleged negligent event occurred at the water cooling towers by the alleged release of the bacteria during a very specific short period which injured claimants (see Ferrugia v State of New York, 237 AD2d 858 [3d Dept. 1997]; cf. Lepkowski v State of New York, 1 NY3d 201, 208 [2003] [dismissing claim where claimants failed to identify where the claim arose; itemize damages; and indicate the total sum claimed] and Morra v State of New York, 107 AD3d 1115, 1116 [3d Dept. 2013] [dismissing claim where the time period when the claim arose was over two years and the place where the claim arose encompassed nine counties]), and the Court must consider claimants' "description of the location of the accident . . . in light of the type of claim that is being asserted" (Sabine v State of New York, UID No. 2015-018-620 [Ct Cl, Fitzpatrick, J., May 28, 2015]). Here, the claims list the addresses of claimants, which may or may not be "within the vicinity" of the Bronx Psychiatric Center. However, enough facts were alleged for defendant to study whether there was a Legionella bacteria outbreak and the potential extent of the alleged transmission of said bacteria from the water cooling towers. Moreover, the notices of intention reference a "coinciding outbreak in the Bronx" (Castro Notice of Intention ¶ 2; Woolridge Notice of Intention ¶ 2) and the claims state, that the New York City Department of Health identified the Bronx Psychiatric Center as the source of the of Legionnaire's disease outbreak (Castro Claim ¶ 4; Woolridge Claim ¶ 4). The Court finds that the notices of intention and the claims " 'provide a sufficiently detailed description of the particulars of the claim to enable [defendants] to investigate and promptly ascertain the existence and extent of [their] liability' " (Sommer v State of New York, 131 AD3d 757, 757-758 [3d Dept. 2015], quoting Flemming v State of New York, 120 AD3d 848, 848 [3d Dept. 2014] [internal quotation marks and citation omitted]; see also Wilson v State of New York, 61 AD3d 1367, 1368-1369 [4th Dept. 2009]; Cannon v State of New York, 163 Misc 2d 623, 627-628 [Ct Cl 1994]). The more pertinent issue is whether the alleged leak at that location could have caused claimants to contract Legionnaire's disease.
As for the nature of the claim, it states that the claim is a personal injury action and that the defendant was negligent in the maintenance, operation and control of said premises in failing to prevent the propagation of Legionella bacteria in the cooling towers and water system at the location. Specifically, it notes that the defendant was negligent in failing to inspect, install, repair and clean the water towers. These allegations are sufficient notice of the type of action alleged therein (see Sinski v State of New York, 265 AD2d 319, 319 [2d Dept. 1999]; cf. Mrabet v State of New York, UID No. 2016-018-705 [Ct Cl, Fitzpatrick, J., Mar. 3, 2016] [dismissing claim where the claimant failed to state how the State caused him to contract tuberculosis while incarcerated]).
Although the Lepkowski court warned that the Court of Claims Act "does not require the State to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski v State of New York, 1 NY3d at 208 [citation omitted]), the Court finds that the claims provide sufficient information for defendant to commence investigations regarding the claims and to prepare for further discovery needs.
Accordingly, defendants' motion to dismiss (M-91131) is denied. Claimants' cross motion to amend their claims or to file late claims (CM-91635) is denied as moot. Defendant is directed to file an answer within forty days of the date of filing of this Decision and Order.
July 9, 2018
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Verified Claims, filed on August 4, 2017. 2. Notice of Motion to Dismiss, dated October 3, 2017; and Affirmation in Support, affirmed by Lawrence E. Kozar, AAG on October 3, 2017, with Exhibits A through B annexed thereto. 3. Notice of Cross Motion, dated January 8, 2018; and Affirmation in Support of Cross Motion and in Opposition to Defendants' Motion to Dismiss, affirmed by Ronald L. Katter, Esq. on January 8, 2018, with Exhibits A through G annexed thereto. 4. Affirmation in Opposition to Cross Motion and in Further Support of Motion to Dismiss, affirmed by Lawrence E. Kozar, AAG on March 1, 2018, with Exhibit A annexed thereto. 5. Affirmation in Reply, affirmed by Ronald L. Katter, Esq. on April 23, 2018, with Exhibits F through O annexed thereto.