                            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
