Kirsner v. State

New York State Court of Claims

Kirsner v. State

103 Misc. 2d 1039, 427 N.Y.S.2d 395, 1980 N.Y. Misc. LEXIS 2247

New York Court of Claims·Decided April 24, 1980·No. Claim No. 62567·Published

Opinion

OPINION OF THE COURT

Gerard M. Weisberg, J.

Claimant has moved for an examination before trial. The motion is not opposed, but the defendant State of New York requests that the order provide that the relief sought be conditioned on service of a "sketch” showing the place of the accident. Rule 24 of the Rules of the Court of Claims (22 NYCRR 1200.24) provides in part as follows: "in negligence claims, a rough sketch or drawing showing the location of the premises affected or the place where the claimant alleges that the accident occurred, shall be [attached to the claim].” None [1040] is attached to the claim previously served and filed. Counsel for the movant avers that "[i]t is impossible to draw a sketch where the accident occurred as same may be construed to be misleading.” He offers instead to furnish photographs of the scene.

The purpose of this rule is to give the State a reasonable indication of the location of the occurrence. An accurate photograph would accomplish this. To impose upon claimant the task of furnishing something which would be less than satisfactory merely to achieve literal compliance with the rule would be to exalt form over substance. Therefore, for the purpose of this rule, we deem the word "sketch” to mean any graphic representation, including a photograph.

The claimant has also requested that the State furnish a sketch or photograph of the place where the accident occurred. The rule does not provide for reciprocity, nor is there any statutory or judicial authority for imposing such a requirement. The court deems such a procedure inappropriate because although the claimant knows, or should know, where the accident occurred, the defendant generally cannot be expected to possess such knowledge. Any information which the latter has may be obtained at an examination before trial.

Therefore, claimant’s motion is granted to the extent set forth in the order entered and subject to the conditions specified.

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OPINION OF THE COURT

Gerard M. Weisberg, J.

Claimant has moved for an examination before trial. The motion is not opposed, but the defendant State of New York requests that the order provide that the relief sought be conditioned on service of a "sketch” showing the place of the accident. Rule 24 of the Rules of the Court of Claims (22 NYCRR 1200.24) provides in part as follows: "in negligence claims, a rough sketch or drawing showing the location of the premises affected or the place where the claimant alleges that the accident occurred, shall be [attached to the claim].” None [1040] is attached to the claim previously served and filed. Counsel for the movant avers that "[i]t is impossible to draw a sketch where the accident occurred as same may be construed to be misleading.” He offers instead to furnish photographs of the scene.

The purpose of this rule is to give the State a reasonable indication of the location of the occurrence. An accurate photograph would accomplish this. To impose upon claimant the task of furnishing something which would be less than satisfactory merely to achieve literal compliance with the rule would be to exalt form over substance. Therefore, for the purpose of this rule, we deem the word "sketch” to mean any graphic representation, including a photograph.

The claimant has also requested that the State furnish a sketch or photograph of the place where the accident occurred. The rule does not provide for reciprocity, nor is there any statutory or judicial authority for imposing such a requirement. The court deems such a procedure inappropriate because although the claimant knows, or should know, where the accident occurred, the defendant generally cannot be expected to possess such knowledge. Any information which the latter has may be obtained at an examination before trial.

Therefore, claimant’s motion is granted to the extent set forth in the order entered and subject to the conditions specified.

Kirsner v. State, 103 Misc. 2d 1039, 427 N.Y.S.2d 395, 1980 N.Y. Misc. LEXIS 2247 (N.Y. Super. Ct. 1980).

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