State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 16, 2016 520891 

________________________________

DELIA DAVILA, Also Known as

DELGIA DAVILA, as

Administrator of the

Estate of GLORIA BONILLA,

Deceased,

Respondent,

v MEMORANDUM AND ORDER

STATE OF NEW YORK,

Appellant.

________________________________

Calendar Date: April 27, 2016

Before: Peters, P.J., Lahtinen, Garry, Clark and Mulvey, JJ.

__________

Eric T. Schneiderman, Attorney General, Albany (Kathleen M.

Treasure of counsel), for appellant.

Foulke Law Offices, Goshen (Robert N. Isseks of counsel),

for respondent.

__________

Garry, J.

Appeals (1) from an order of the Court of Claims

(Fitzpatrick, J.), entered July 7, 2014, which, among other

things, granted claimant's motion for summary judgment on the

issue of liability, and (2) from the judgment entered thereon.

On March 21, 2009, Gloria Bonilla (hereinafter decedent)

suffered severe injuries in a fire, leading to her death, while

residing at a home for mentally disabled individuals. The home

was maintained and operated by the Office of Mental Retardation
-2- 520891 

and Developmental Disabilities (hereinafter OMRDD),1 under the

name Riverview Individualized Residential Alternative

(hereinafter Riverview IRA). Claimant was appointed

administrator of decedent's estate in March 2011, and promptly

thereafter filed a claim seeking damages for decedent's conscious

pain and suffering. Claimant moved for summary judgment and

defendant cross-moved to dismiss the claim on the ground that

claimant failed to sufficiently state the nature of the claim

pursuant to Court of Claims Act § 11 (b). The Court of Claims

denied defendant's cross motion to dismiss and granted claimant's

motion for summary judgment. Defendant appeals, contending that

the claim was jurisdictionally defective as the statutory

requirements were not met. 

Court of Claims Act § 11 (b) "places five specific

substantive conditions upon [defendant's] waiver of sovereign

immunity by requiring the claim to specify (1) the nature of the

claim; (2) the time when it arose; (3) the place where it arose;

(4) the items of damage or injuries claimed to have been

sustained; and (5) the total sum claimed" (Lepkowski v State of

New York, 1 NY3d 201, 207 [2003] [internal quotation marks and

brackets omitted]). These statutory requirements are "strictly

construed" (Kolnacki v State of New York, 8 NY3d 277, 280 [2007]

[internal quotation marks and citation omitted]). The guiding

principle and "purpose of the notice of claim requirement [is] to

allow [defendant] to investigate the claim and to estimate its

potential liability" (Matter of New York City Asbestos Litig., 24

NY3d 275, 282 [2014]; see Lepkowski v State of New York, 1 NY3d

at 207). "'Absolute exactness'" is not required (Morra v State

of New York, 107 AD3d 1115, 1115 [2013], quoting Heisler v State

of New York, 78 AD2d 767, 767 [1980]), but the claim must enable

prompt investigation and be "sufficiently specific to enable [a]

defendant to reasonably infer the basis for its alleged

liability" (Deep v State of New York, 56 AD3d 1260, 1261 [2008]

[internal quotation marks and citation omitted]; see Heisler v

State of New York, 78 AD2d at 768). Moreover, defendant is not

required "to ferret out or assemble information that section 11

1 OMRDD is now known as the Office for People With

Developmental Disabilities.
-3- 520891 

(b) obligates the claimant to allege" (Lepkowski v State of New

York, 1 NY3d at 208; accord Rivera v State of New York, 52 AD3d

1075, 1076 [2008]). 

Here, the claim alleges that defendant "negligently

constructed, operated and maintained Riverview IRA" and that on

March 21, 2009, "as a result of said negligence," decedent

"died[] while in the custody and care of [defendant.]" The claim

further alleges that, "[p]rior to her expiration, [decedent]

suffered extreme pain and suffering." 

As relevant to the subject claim, decedent, described in

her individualized service plan as "profoundly retarded," was a

resident of Riverview IRA when, on March 21, 2009, a fatal fire

at the facility claimed the lives of four residents, including

her life. OMRDD subsequently conducted an extensive

investigation and, in January 2010, issued a comprehensive

report.2 This report detailed a failure to follow the

established fire drill protocol, which would have ensured

decedent's evacuation through the nearest exit. She was instead

guided from her room and left in another part of the building,

where she suffered grave injury in the fire and, ultimately, died

en route to the hospital.

Where 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 a claim

is based, it cannot be readily found that a lack of specificity

has interfered with defendant's ability to investigate a claim

(see Oliver v State of N.Y. [SUNY] Health Science Ctr. at

Brooklyn, 40 AD3d 719, 719 [2007]; cf. Matter of O'Shea v State

of New York, 36 AD3d 706, 706-707 [2007]), nor that defendant has

been improperly required to "assemble" information regarding a

claim (compare Lepkowski v State of New York, 1 NY3d at 207-208;

Morra v State of New York, 107 AD3d at 1116). The subject claim

2 This was one of three investigative reports. There was

also a report issued by the Department of State Office of Fire

Prevention and Control, released in June 2009, and a grand jury

report released in December 2009.
-4- 520891 

specifies the time and place of the fire, states that decedent

was in defendant's "custody and care" and alleges injuries,

including death, sustained as a result of defendant's negligence. 

In view of the particular circumstances posed here, the specific

facts alleged are sufficient to allow defendant to reasonably

infer a cause of action consistent with the negligent

"construct[ion], operat[ion] and maint[enance]" of the facility,

as alleged (see Demonstoy v State of New York, 130 AD3d 1337,

1337-1338 [2015]; Morris v State of New York, 27 AD3d 282, 283

[2006]; Santos v State of New York, 291 AD2d 851, 851 [2002];

Sinski v State of New York, 265 AD2d 319, 319 [1999]; compare

Lepkowski v State of New York, 1 NY3d at 208; Robin BB. v State

of New York, 56 AD3d 932, 933 [2008]). Accordingly, we agree

with the Court of Claims that the subject claim met the statutory

requirements.

Peters, P.J., Lahtinen, Clark and Mulvey, JJ., concur.

ORDERED that the order and judgment are affirmed, without

costs.

ENTER:

Robert D. Mayberger

Clerk of the Court