Plaintiff’s EBT Testimony in Slip-in-Fall Case Allows for Case Dismissal
September 30, 2025In Rebecca J. v. State of New York (2025 NY Slip Op 03315), the Appellate Division, Second Department, recently affirmed an order of the Court of Claims granting the State’s motion to dismiss the claimant’s case for lack of subject matter jurisdiction. The claim arose from a bicycle accident that occurred in Westchester County on October 30, 2021, when the claimant was allegedly struck by a motor vehicle while crossing Route 9.
On January 20, 2022, the claimant served a notice of intention to file a claim, asserting that she had been injured due to the State’s alleged negligence in operating and maintaining the roadway and intersection. However, the notice of intention did not clearly state whether the claimant was riding a bicycle or walking at the time of the incident, nor did it sufficiently describe how the State was negligent. More than 18 months later, on July 13, 2023, the claimant filed a formal claim that added additional factual allegations and specific theories of negligence not included in the original notice of intention.
The State moved to dismiss the claim pursuant to CPLR 3211(a)(2) and (7), arguing that the notice of intention failed to meet the substantive requirements of Court of Claims Act § 11(b), and thus could not serve to extend the time to file a claim. The Court of Claims granted the motion, and the claimant appealed.
The Appellate Division affirmed, noting that under Court of Claims Act § 11(b), a notice of intention must include sufficient detail to allow the State to investigate the allegations and assess potential liability. While exactness is not required, the statement must be sufficiently definite. Here, the Court found that the claimant’s notice of intention failed to particularize the nature of the claim, making only general assertions of negligence and lacking clarity on whether the claimant was a bicyclist or pedestrian at the time of the accident.
The Court emphasized that the State is not obligated to investigate beyond what is disclosed in the notice of intention. Since the deficient notice could not extend the time to file a claim, the July 2023 filing – more than 90 days after the accident – was untimely. As the claimant failed to comply with the jurisdictional requirements of the Court of Claims Act, dismissal was proper.
Salvatore R. Marino, Esq.