New York State Court of Claims

New York State Court of Claims

CERVINI v. THE STATE OF NEW YORK, #2001-016-036, Claim No. 102273, Motion No. M-63260


Synopsis



Case Information

UID:
2001-016-036
Claimant(s):
GIOVANNI L. CERVINI, as Infant by M/N/G Antoinette Cervini and Antoinette Giovanni
Claimant short name:
CERVINI
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102273
Motion number(s):
M-63260
Cross-motion number(s):

Judge:
ALAN C. MARIN
Claimant's attorney:
Waxman & Wincott, P.C.By: Kenneth R. Shapiro, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Denis J. McElligott, AAG
Third-party defendant's attorney:

Signature date:
May 10, 2001
City:
New York City
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

By this motion, claimants seek to amend their existing claim (no.102273) by changing the number of an address on Hempstead Turnpike from 1000 to 1007. The underlying claim arose on January 14, 2000 at about 8:15 in the evening. Giovanni Cervini, an infant, fell on the sidewalk in front of such address located at Hempstead Turnpike in Franklin Square, Nassau County. The accident, occurring 20 feet east of William Avenue and adjacent to the premises known as "Tuato Pasta," was allegedly a result of a defective, uneven sidewalk, which had a piece of metal protruding from the remains of a sign post that had been removed.

Claimants' proposed claim, exhibit B in their motion papers, is in every respect identical to claim no. 102273 save two. One is the aforementioned addition of seven to the street address. The other is that the premises in the proposed claim has become "Taut Pasta."

Claimants maintain that the mistaken address was an inadvertent, typographical error. Claimants motion is not opposed by the defendant. Before granting claimants' motion, it would not be inappropriate to restate a few of the basics that obtain here.

By permitting suits for money damages, the Court of Claims Act constitutes the State's waiver of its sovereign immunity. Thus its provisions must be strictly construed; failure to comply implicates subject matter jurisdiction. Phillips v State of New York, 237 AD2d 590, 655 NYS2d 638 (2d Dept 1997). Thus if, for example, a personal injury claim is insufficiently detailed and the 90-day limitation period of §10.3 of the Act has passed, such cannot be saved by an amendment.[1] See Kerai v State of New York, claim no. 93387, motion nos. M-60851 & CM-61020 (Marin, J., 2000). Not reached in the instant matter is whether the Cervinis' claim would, without this amendment, run afoul of the particularity requirements of subdivision b of §11 of the Act.

***

Accordingly - - and having reviewed the submitted papers[2] - - IT IS ORDERED that claimants' motion (M- 63260) be granted, and claim no. 102273 be deemed amended in the manner submitted by claimants as exhibit B in their Notice of Motion.


May 10, 2001
New York City, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




[1] Section 10.6 of the Act does, of course, authorize requesting permission to file a late claim.

[2] Reviewed from the claimants was their Notice of Motion which included an Affirmation from counsel and exhibits A and B, which are the claim and the proposed amended claim, respectively. As indicated, defendant made no submission.