Defendants move by Notice of Motion, dated October 23, 2024, seeking an order dismissing the claim pursuant to Court of Claims Act §§ 10 and 11. Claimant has opposed the motion and Defendants replied thereto.

On December 7, 2021, Claimant served a Verified Notice of Intention to File Claim ("Notice of Intention"), dated December 2, 2021, on the Attorney General by certified mail, return receipt requested. The Notice of Intention alleged a trip and fall on September 26, 2021, at the Bear Mountain Dock, "and more specifically the dock area," located in Rockland County, New York. The document further provided that the Defendants "[failed] to properly treat or eliminate tripping hazards including uneven/misleveled wooden boards/planks and nails on the dock . . . ."

On December 16, 2021, Claimant served an Amended Verified Notice of Intention to File Claim ("Amended Notice of Intention"), dated December 7, 2021, on the Attorney General by certified mail, return receipt requested.

On December 20, 2021, Claimant served Amended Verified Notice of Intention to File Claim ("Second Amended Notice of Intention"), dated December 16, 2021, on the Attorney General by certified mail, return receipt requested another.

On April 13, 2023, Claimant filed the underlying claim ("Claim") with the Court, and hand delivered a copy of the Claim to David Szalda, an Associate Counsel at the New York State Parks, Recreation & Historic Preservation ("NYS PCarks Department") on May 17, 2023. The Claim alleges that on or about September 26, 2021, at approximately 12:00 p.m., "[t]he claimant was caused to violently be precipitated to the ground at the Bear Mountain Dock, located in the Hamlet of Tomkins Cove, Town of Stony Point, County of Rockland, State of New York; and more specifically the dock area."

On June 27, 2023, the Defendants filed and served a Verified Answer, in which the fifth and sixth affirmative defenses asserted that the Claim was untimely because the Notices of Intentions (NOIs) were defective and did not extend the time to file a claim within ninety days of accrual since they did not sufficiently set forth the location of where the incident occurred. The seventh affirmative defense also asserted that the Claim was jurisdictionally defective because it too did not contain an adequate description of the location where the accident occurred. The eighth affirmative defense articulated that the Claim was also jurisdictionally defective because the Claimant did not comply with Court of Claims Act § 11(a) and serve the claim personally or by certified mail, return receipt requested.

After Defendants filed their Answer, the Court dismissed the Claim based upon Claimant's failure to appear at a preliminary conference. The claim was, thereafter, restored following motion practice.

In lieu of engaging in discovery, Defendants filed this motion to dismiss the Claim based on Claimant's failure to timely file the Claim that sufficiently described the location of the Claimant's trip and fall, and for improper service of the claim^[FN1] .

In support of the motion, Defendant annexes the Affirmation of David Szalda, an Associate Counsel at the NYS Parks Department, in which Mr. Szalda avers that "[t]he Bear Mountain Dock is a part of Bear Mountain State Park and it is a large one-level open wooden structure projecting over the Hudson River that park patrons can access for scenic enjoyment and boats that utilize the dock."

Defendants' counsel argues that the NOIs were jurisdictionally defective thereby making the Claim, filed more than ninety days after accrual, untimely. It is counsel's contention that the NOIs are defective because Claimant failed to identify the location where she fell on the Bear Mountain Dock, and simply stated that the location of her fall was at the Bear Mountain Dock, and "more specifically the dock area." Counsel argues that "[t]his description does not, however, provide any information for the location on the dock area where the incident occurred." Counsel, referring to Mr. Szalda's affirmation and the Google images, argues that "the Bear [*2]Mountain Dock is a sizeable piece of property and there is no way for the Defendants to ascertain where on the dock that she allegedly fell in order to investigate that specific location." Furthermore, counsel argues that the close-up photographs provided by Claimant as attachments to the NOIs "do not shed any light where on the dock that incident occurred. Indeed, there is no frame of reference in the photographs to know where the alleged fall occurred on the dock because the photographer zoomed in on the boards/planks." It is counsel's position that "the photographs annexed to the Notices of Intention do not . . . depict uneven planks/boards or noticeably protruding nails that would make the site identifiable simply by walking along the dock . . . the entire dock consists of boards/planks and nails and it would be impossible to discern which board/plank [C]laimant is referring to." Finally, counsel argues that "the Defendants are not required to walk around the dock and guess where the claimant allegedly fell. That information must be contained in the notice of intention."

Defendants next argue that the Claim is defective because it does not adequately describe the location of the trip and fall as it mirrors the language contained in the NOIs, to wit: Claimant tripped and fell "on uneven/unlevel wooden boards/planks and nails on the dock ...." Counsel contends that "these unspecific statements did not adequately provide a description of the accident location to satisfy the pleading requirements of [Court of Claims Act] § 11(b)." Counsel argues that the Google images annexed to the motion as Exhibit F demonstrate that "the Bear Mountain Dock is of a considerable size" and "[t]herefore, stating that she fell on the Bear Mountain Dock and 'more specifically on the dock area' provided no guidance to be able to investigate the specific situs of her alleged fall." Lastly, on this second point, counsel notes that "the Claim did not contain any photographs of the alleged fall site . . . [and that] even if the Claim contained the photographs annexed to the Notices of Intention, then it still would have been insufficient to provide sufficient information about the location, as outlined above, because those photographs provide no guidance where the incident occurred on the dock."

In opposition to the motion, Claimant contends that: 1) the three lag bolts protruding above the surface of the dock were distinct and readily identifiable because all the other screws in the dock were flat wood screws; 2) where the NOI included the photographs, but the Claim was inadvertently filed without them, the error is not jurisdictional; and 3) Claimant attached affidavits of service of the Claim upon the Attorney General's Office and the two other Defendants, therefore, the Court has personal jurisdiction over the Defendants.

With respect to the insufficiency of the allegations of the location of the defect, Claimant argues that the description contained in the NOI was "adequately accurate" for Defendants to locate and investigate the defect. Counsel further argues that the negligent condition was described as "uneven/misleveled wooden board/planks and nails on the dock . . . " (emphasis omitted). Counsel goes on to explain that the photographs attached to the Claim show three "lag bolts sticking up from the wood surface of the dock . . . [and that] there are no measurements from the edge of the dock to the lag bolts because the defect was repaired by the [Defendants] on the date of the accident" (emphasis omitted). Next, Counsel provides a recitation of the construction process of a wooden dock and the use of lag bolts, drawing from his personal knowledge and experience. He explains why a lag bolt is used in such a project instead of a nail. He further states that "[i]n the pier there are only three lag bolts that were installed by the [Defendants] which makes them stick out like the proverbial sore thumb . . . [and] [t]he only tripping instrumentality on the dock were the lag bolts." Annexed as Exhibit "8" to the opposition papers is a photograph by Claimant depicting "the work boots and khaki pants of two [*3]workmen next to and facing the defect." It is Claimant's counsel's argument that "[e]xcept for the photographs by [Claimant] and the Cruise Line Accident Report, a more exact location of the defect is almost exclusively in the possession of the [Defendants]." Counsel further argues that the affirmation of David Szalda does not indicate that "he had no knowledge or records of the incident, nor that the photographs were not sufficient to investigate the area."

Claimant's counsel further argues that the Defendants "would be familiar with the path or area traversed by passengers walking from the gangway to the State Park . . . [t]he area for the search on the dock for the defect was fairly limited and circumspect." Moreover, counsel points out that the description of the accident in the accident report states, in pertinent part, "Fell on Bear Mountain Pier: Screw or lag sticking up through the wood tripping" and that under "Additional Information" the accident report states, in pertinent part, that "Bear Mountain crew came started fixing all wood on the pier afterwards. (Screw gunned) All wood sticking up" (emphasis omitted). Counsel notes Claimant's counsel's purported "inability to take measurements from the repaired defect to the corners of the dock"; however, counsel does not provide the basis for the purported "inability" (emphasis omitted).

In reply, Counsel argues that the opposition papers introduce new and detailed information about the defect and the circumstances of the incident—derived from Claimant's counsel's expert knowledge and accident reports—which was not included in the Claim or NOIs. He contends that this additional information "demonstrates that a plain reading of the Notice[s] of Intention [] and Claim are deficient in setting forth where the [C]laimant allegedly fell on the Bear Mountain Dock."

Counsel further asserts that the black-and-white photographs attached to the NOI, unlike the color photographs provided later, did not offer sufficient guidance as to where on the large dock area the incident occurred. He also notes that, unlike Claimant's counsel, he does not have substantial construction experience to recognize that the pictures depict "lag bolts," particularly when the NOIs referred to "nails." Counsel questions why the NOIs did not originally state "lag bolts" rather than "nails," if the Claimant was aware of the distinction.

Defendants' counsel submits that the reading of a NOI is in limited to the four corners of the document to determine if it sufficiently sets forth the location of a claimant's accident without referencing other extraneous information. Counsel asserts that the NOIs failed to meet the strict pleading requirements by merely stating that the Claimant fell on the dock due to uneven boards and nails, accompanied by a close-up photograph that did not clarify the specific location on the large dock. He argues that the existence of accident reports is irrelevant, as they were not attached to the NOIs and do not provide guidance as to where on the dock the incident occurred.

Therefore, counsel contends that because the deficient NOIs did not extend the time to file and serve a claim under Court of Claims Act § 10(3), the underlying Claim—filed and served more than ninety days after accrual—is untimely. Additionally, he argues that the Claim itself is deficient in specifying where the incident occurred, warranting dismissal under Court of Claims Act § 11(b). Counsel further maintains that the failure to attach photographs to the Claim further weakens its sufficiency in adequately describing the location of the accident.

Court of Claims Act § 10 provides that "[n]o judgment shall be granted in favor of any claimant unless such claimant shall have complied with the provisions of this section applicable to his claim." Section 10(3) further provides, inter alia, that a claim to recover damages for [*4]personal injuries caused by the negligence of the State must be filed within 90 days after the accrual of such claim, unless the claimant within such time serves a written notice of intention to file a claim, in which event the claim shall be filed within two years after the accrual of the claim (see Bennett v State of New York, 106 AD3d 1040, 1040 [2d Dept 2013]; Welch v State of New York, 286 AD2d 496, 497 [2d Dept 2001]).

Section 11(b) of the Court of Claims Act requires a claim to specify, among other things, "the time when" the claim arose and the "place where" it arose (see Lepkowski v State of New York, 1 NY3d 201, 207 [2003]). Likewise, a notice of intention to file a claim must also include a statement as to when and where the claim arose (see Court of Claims Act § 11[b]; Cobin v State of New York, 234 AD2d 498, 499 [2d Dept 1996]). The requirements of the Court of Claims Act that are set forth in sections 10(3) and 11(b) must be "strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim" (Welch v State of New York, 286 AD2d at 497, 498; see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722—723 [1989]; Hughes v State of New York, 105 AD3d 907, 908 [2d Dept 2013]; Williams v State of New York, 38 AD3d 646, 647 [2d Dept 2007]).

"Pursuant to Court of Claims Act § 11(b), a claim must set forth the nature of the claim and the time and place where it arose. Court of Claims Act § 11(b) does not require 'absolute exactness'; it requires a statement made with 'sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances' " (Wharton v City Univ. of New York, 287 AD2d 559, 559 [2d Dept 2001]). The statement contained in the claim "must be specific enough so as not to mislead, deceive or prejudice the rights of the State. In short, substantial compliance with section 11 is what is required" (Grumet v State of New York, 256 AD2d 441, 442 [2d Dept 1998]).

Notably, Claimant's counsel's need to provide a detailed explanation of the significant difference between "nails" and "lag bolts" underscores the deficiencies in the Verified Claim itself. The term "lag bolt(s)" is never mentioned in the Verified Claim. While counsel possesses the self-declared expertise to distinguish between the two, the fact that such an extraneous explanation is necessary highlights the insufficiency and lack of accuracy in the detail and description provided in the NOIs and Verified Claim. Indeed, "the State is not required to go beyond a claim or notice of intention in order to investigate an occurrence or ascertain information which should be provided pursuant to Court of Claims Act § 11" (Cobin v State of New York, 234 AD2d at 499 [internal quotation marks omitted]; see Lepkowski v State of New York, 1 NY3d at 208).

While Claimant asserts that "nothing was hidden from the [Defendants] . . . [and that] [t]he [Defendants] were not misled to investigate the wrong area," essentially arguing that the Defendants have not suffered any prejudice, the absence of prejudice to the State is irrelevant. A court lacks the authority to waive applicable jurisdictional requirements based on its own notions of justice (see Byrne v State of New York, 104 AD2d 782, 784 [2d Dept 1984], lv denied 64 NY2d 607 [1985]).

Below is an analysis of the cases cited by Claimant in support of her argument that the NOIs and Claim provide sufficient detail regarding the location to satisfy the pleading requirements of Court of Claims Act § 11(b):

• In Davila v State of New York, 140 AD3d 1415,1417 (3d Dept 2016), the court held that "[w]here an agency of defendant has performed the internal investigation of an incident and is therefore the primary or, perhaps, even the sole source of information upon which [*5]a claim is based, it cannot be readily found that a lack of specificity has interfered with defendant's ability to investigate a claim nor that defendant has been improperly required to 'assemble' information regarding a claim" (internal citations omitted). The claim in Davila alleged that the decedent died as a result of a fire at a home for mentally disabled persons based upon the State's negligent construction, operation and maintenance of the home where decedent resided. In Davila, the State conducted an extensive investigation following the fire and was in the exclusive control of the information related to the State's actions. The Third Department decided the matter "[in] view of the particular circumstances posed [therein]" (id.). Such is not the case here where Claimant and her counsel were free to visit the location of the accident and take their own measurements and photographs.

• In Mindley v State of New York, 203 AD3d 609 (1st Dept 2022), the court held that the claim was sufficiently detailed in its description of the accident location notwithstanding that "the location of claimant's accident was a highway viaduct under construction, consisting of hundreds of feet of open beaming closed to the public, with no addresses or intersections by which to describe the accident's precise location" because "claimant reported his accident at the time it happened; within two days, the State's insurance carrier conducted an investigation by contacting claimant, visiting the site, taking the statement of the nonparty witness, and taking photographs of the broken plank that allegedly precipitated claimant's fall from the viaduct." In the case at bar, notwithstanding that there was a report of the incident, and that the State took immediate remedial action, Claimant could have and should have taken detailed measurements so as to provide and exact location of the accident, especially in light of the terminology contained in the NOIs and the Claim, to wit: "nails" rather than "lag bolts."

• Ursini v State of New York, 74 Misc 3d 1233(A) (Ct Cl, 2022) is distinguishable from the present case, as the court in Ursini found that "the notice of intention provides a detailed description of the grassy area on the SUNY/Purchase campus, that includes measurements in feet and inches of the distance from specified buildings, a drain, and a curb to the alleged defect in the ground." In contrast, here, no explanation is provided as to why Claimant was unable to measure the distance from the edges of the dock to the specific location of the alleged defect.

• The incident in Acee v State of New York, 81 AD3d 1410 (4th Dept 2011), occurred in the handicap parking area of a parking lot adjacent to a correctional facility. The Fourth Department's analysis of the description of the location is specific to parking lots, handicap parking areas and adjacent access roads.

• In Moravec v City Univ. of NY,33 Misc 3d 1230 (A) (Ct Cl 2011), the incident involved a trip and fall from a set of stairs, and the court's analysis of the sufficiency of the detail regarding the location of the incident was specific to steps applying staircase law. The application of such analyses to this matter would be incongruent.

Here, State workers investigated, repaired and reported the defect soon after the accident occurred. Notwithstanding that Defendant may have had sufficient information to allow it to conduct an investigation of the underlying events, and there would have perhaps been no prejudice to the State, "lack of prejudice to the State is immaterial" (Criscuola v State of New York, 188 AD3d 645, 646 [2d Dept 2020], see Vallarta v State of New York, 211 AD3d 884, 885 [*6][2d Dept 2022]; Matter of DeMairo v State of New York, 172 AD3d 856, 857 [2d Dept 2019]; Byrne v State of New York, 104 AD2d at 784), especially in light of the specific wording used in the NOIs and the Claim when describing the defect. The Claim refers to "nails" and Claimant's counsel has provided this Court with a vast distinction between a "nail" and a "lag bolt," which was apparently the correct term for the type of fastener that caused Claimant's trip and fall. It cannot be denied that the perhaps inadvertent failure to use the proper name for the instrumentality of the Claimant's trip and fall is significant. The State cannot be expected, several years later and relying on a purportedly now accurate description of the fastener, to utilize this extrinsic information to conduct a proper investigation of the situs of the accident. Accordingly, the Court finds that the NOIs, as well as the Claim, fail to provide sufficient detail regarding the location to satisfy the pleading requirements of Court of Claims Act § 11(b).

As the NOIs were deficient, they did not serve to extend the Claimant's time to file and serve a claim beyond the 90—day statutory period (see Court of Claims Act § 10[3]; Sommer v State of New York, 131 AD3d 757, 758 [3d Dept 2015]; Cendales v State of New York, 2 AD3d 1165, 1167 [3d Dept 2003]). Therefore, the Claimant's claim, which was filed approximately 564 days after accrual of the claim, was untimely (see Langner v State of New York, 65 AD3d 780, 782 [3d Dept 2009]). "[C]laimant's failure to comply with the filing requirements of the Court of Claims Act deprive[s] the Court of Claims of subject matter jurisdiction" (see Hargrove v State of New York, 138 AD3d 777, 778 [2d Dept 2016]).

Accordingly and based upon the foregoing, Defendants' motion to dismiss is GRANTED, and it is hereby

ORDERED, that Defendants' motion (M-101491) is granted and Claim No. 139057 is dismissed as untimely.