New York State Court of Claims

New York State Court of Claims

TUCKAHOE v.THE STATE OF NEW YORK, #2000-010-054, Claim No. 101627, Motion Nos. M-61473, CM-61961


Defendant's motion to dismiss and claimant's cross-motion to amend the claim and for a declaratory judgment.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Terry Jane Ruderman
Claimant's attorney:
MIRANDA & SOKOLOFFBy: Steven. T. Sledzik, Esq.
Defendant's attorney:
Attorney General for the State of New YorkBy: John Healey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 14, 2000
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-4 were read and considered by the Court on defendant's motion to dismiss and claimant's cross-motion to amend the claim and for a declaratory judgment and partial summary judgment:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits.......................1

Notice of Cross-Motion, Attorney's Supporting Affirmation and Exhibits.............2

Defendant's Reply Affirmation................................................................................3

Claimant's Reply Affirmation..................................................................................4


Supreme Court Actions
June D. Koike commenced an action in Supreme Court, Westchester County, against Academy Bus Co., Inc. and Al Stone alleging that on February 8, 1999, Stone was driving an Academy Bus Co., Inc. bus negligently when he struck Koike, who was crossing the street near the intersection of Lake Avenue and Main Street in the Village of Tuckahoe ("Tuckahoe")(Claimant's Ex. 1).[1] The bus company and the bus driver commenced a third-party action in Supreme Court, Westchester County, against Tuckahoe alleging, inter alia, improper design, maintenance and repair of the location (Claimant's Ex. B).
Court of Claims Action
Tuckahoe commenced Claim No. 101627 in the Court of Claims against the State of New York alleging that, prior to Koike's accident, the State had entered into an agreement with Tuckahoe to design, construct and repair the intersection, and that if Koike, the bus company and/or the bus driver are found to be entitled to judgment against Tuckahoe then, "said injuries and/or damages were occasioned through the sole carelessness, recklessness, acts, omissions, negligence and/or breaches of duty and/or obligation in fact and/or implied by law by the State of New York" (Defendant's Ex. A, ¶ 7). The claim further alleged, "Tuckahoe is entitled to judgment over and against the State of New York for any judgment as may be rendered against Tuckahoe in favor of June Koike and/or any other party; the State of New York should hold Tuckahoe harmless for the full or portions of said judgment herein recovered against Tuckahoe in the action, including all costs [sic] investigation, disbursements, expenses and attorneys fees incurred in the defense of this action and in the conduct of this action" (Defendant's Ex. A, ¶ 8). The claim did not specify damages; rather it stated, "WHEREFORE, in the event that there is a judgment in favor of June Koike and/or Al Stone and Academy Bus Company against Tuckahoe, then this party demands judgment over and against the State of New York for the full amount of any judgment, together with costs, disbursements in the investigation and defense of this action, including costs, disbursements and attorneys' fees" (Defendant's Ex. A, ¶ 10).

The State served a Verified Answer raising the affirmative defense of lack of jurisdiction for Tuckahoe's failure to include a statement of the amount of damages and an adequate description of the condition alleged as a cause of the incident (Defendant's Ex. B, ¶¶ 14, 15).
The State's Motion to Dismiss and Tuckahoe's Cross-Motion to Amend
The State moves to dismiss Claim No. 101627 on the grounds that: 1) the claim fails to specify how the State was negligent; 2) the claim fails to include a statement of the amount of damages sought; 3) the contribution and indemnification claims are premature. Tuckahoe cross-moves to amend its claim and attaches a Proposed Amended Claim to its cross-motion papers (Claimant's Ex. F).

While leave to amend shall be freely granted (CPLR 3025[b]), in exercising its discretion of whether to grant such an application, the Court should consider, inter alia, the underlying merit of the proposed amendment and whether prejudice would result from granting the application (see, Lanpont v Savvas Cab Corp., 244 AD2d 208; McKiernan v McKiernan, 207 AD2d 825). Tuckahoe's claim based upon the State's alleged negligence and seeking contribution and indemnification has not yet accrued because Tuckahoe has not made payment, nor even been ordered to make payment, on the underlying Supreme Court actions (see, Bay Ridge Air Rights, Inc. v State of New York, 44 NY2d 49, 56 [where judgment in the underlying action had not been entered, let alone paid, the claim for indemnity and contribution had not yet accrued]; Quinn v Spitale, 203 AD2d 674 [contribution and/or indemnification does not accrue until payment is made on the underlying claim]). Thus, as to these claims, an amendment would not be appropriate because the claims are not ripe.

Tuckahoe also seeks to amend its claim regarding its cause of action for attorney's fees incurred in defending the Koike action in Supreme Court. The Proposed Amended Claim, however, like Tuckahoe's initial claim, fails to assert any alleged damages. Court of Claims Act § 11(b) provides that, "[t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed." While the Supporting Affirmation of Tuckahoe's attorney asserts that as of June 14, 2000, Tuckahoe has incurred attorney's fees of $18,912.45 (Claimant's Attorney's Supporting Affirmation, ¶ 17), the State is not required to go beyond a claim to ascertain information which should have been set forth in the claim (Cobin v State of New York, 234 AD2d 498, 499). The pleading requirements set forth in Court of Claims Act § 11(b) are jurisdictional in nature and must be strictly construed (see, Finnerty v New York State Thruway Auth., 75 NY2d 721). Additionally, an amendment may not be used to cure a jurisdictional defect (see, Acosta v State of New York, ___AD2d___, 704 NYS2d 594; Grande v State of New York, 160 Misc 2d 383, 385). Thus, the proposed amendment, which fails to allege damages regarding the claim for attorney's fees, is not proper.[2]

Accordingly, the Court GRANTS the State's motion to dismiss Claim No. 101627 and DENIES Tuckahoe's cross-motion to amend.
Tuckahoe's Cross-Motion for a Declaratory Judgment
Tuckahoe seeks a declaratory judgment that, pursuant to written agreement (Claimant's Ex. A, ¶ 12), the State is obligated to defend Tuckahoe in the action brought by Koike in Supreme Court. Generally, the Court of Claims does not have authority to render declaratory judgments (see, Wikarski v State of New York, 91 AD2d 1174). However, pursuant to the Court of Claims Act § 9(9-a), the Court does have jurisdiction to render a declaratory judgment "with respect to any controversy involving the obligation of an insurer to indemnify or defend a defendant in any action pending in the court of claims." Clearly, this Court only has jurisdiction to render a declaratory judgment as to "an action pending in the court of claims." Thus, this Court is without jurisdiction to render a declaratory judgment regarding the Koike action pending in Supreme Court.

Accordingly, Tuckahoe's cross-motion for a declaratory judgment is DENIED.

August 14, 2000
White Plains , New York

Judge of the Court of Claims

While Tuckahoe fails to include a copy of the amended complaint brought in Supreme Court by Koike, and referred to in Tuckahoe's footnote 1 to its Attorney's Supporting Affirmation, apparently Koike amended her claim to include Tuckahoe as a defendant.
Tuckahoe, however, may bring a new claim, which properly sets forth the accrued damages, for attorney's fees (see, Republic Ins. Co. v Northern Aire Dev., 88 AD2d 973). To the extent that Tuckahoe seeks summary judgment on its claim for attorney's fees (Claimant's Attorney's Supporting Affirmation, ¶ 17), on the papers submitted, the cross-motion is DENIED.