New York State Court of Claims

New York State Court of Claims

McGINNIS v. THE STATE OF NEW YORK, #2002-015-257, Claim No. 105401, Motion No. M-64672


State's pre-answer motion to dismiss claim for lack of jurisdiction for claimant's failure to itemize damages and to seek total sum claimed is granted.

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):

Claimant's attorney:
John McGinnis, Pro se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 22, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The State in a pre-answer motion seeks dismissal of the claim for lack of personal jurisdiction, lack of subject matter jurisdiction, and for the failure to state the nature of the claim and to specify the items of damage sustained and the total sum claimed. The motion is granted for the reasons set forth below. The claim verified on December 21, 2001 seeks to recover unspecified damages for personal injuries allegedly sustained at approximately 10:15 p.m. on December 15, 2001 when the claimant tripped and fell in a 2 ½ foot by 2 ½ foot hole in the recreation area of Camp Georgetown, a facility operated by the Department of Correctional Services and located at Georgetown, New York. Claimant alleges that after stepping into this indentation, which appeared to be a sewer drain, he staggered into a wooden picnic bench striking and injuring his lower and middle back.

Claimant further alleges that due to the unavailability of medical staff at the facility's clinic he was not provided with medical attention for his injuries until December 18, 2001. On that date, after being seen by the facility nurse, claimant was referred to an outside medical facility where he was x-rayed and examined by a doctor. He alleges that he was diagnosed as having muscle contusions and was directed to take prescribed medications. Claimant also alleges that he was threatened with a facility transfer if he persisted in seeking staff attention for his alleged injuries.

The State moved to dismiss the claim on the grounds that the Court lacks jurisdiction because the claim fails to state a theory of liability upon which the State could arguably be held liable and that claimant has failed to specify "the total sum claimed" (Court of Claims Act § 11 (b)). In response to the motion claimant submitted an unsworn statement dated February 7, 2002 which was received by the Clerk on February 11, 2002, five days after the return date of the motion. The letter merely seeks recognition of claimant's status as a layman.

Contrary to defense counsel's assertions it appears that the instant claim sets forth sufficient detail regarding the incidents complained of to establish the existence of a potential negligence cause of action against the State. The claim, however, fails to set forth the total sum claimed, a jurisdictional defect requiring dismissal.

It is well established "that the requirements of Court of Claims Act Section 11 (a) and (b) are jurisdictional in nature and must be strictly construed" (Martin v State of New York, 185 Misc 2d 799, 801). This is so because claims against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law (see, Lurie v State of New York, 73 AD2d 1006, affd 52 NY2d 849). In fact, the Court of Appeals long ago recognized that where the "[l]egislature has said that a particular form of notice, conveyed with particular details to particular public officers, shall be a prerequisite to the right to sue....[t]he courts are without power to substitute something else" (Thomann v City of Rochester, 256 NY 165, 172).

Here, claimant has failed to set forth in the claim the total sum sought in compensation for the State's alleged negligence. In failing to do so he has failed to meet the literal requirements of Court of Claims Act § 11 (b) and the claim is rendered jurisdictionally defective (see, Lichtenstein v State of New York, 93 NY2d 911, 913). While the Appellate Division, Third Department, has taken a somewhat more relaxed approach in considering the requirements of section 11 with reference to a notice of intention to file a claim, that Court has been quick to point out that a more restrictive approach should be applied to a claim as to which more stringent statutory requirements are imposed (see, Ferrugia v State of New York, 237 AD2d 858; Epps v State of New York, 199 AD2d 914). Here the defect lies in the claim and cannot be disregarded. In this regard it should be noted that section 11 (b) itself distinguishes between a notice of intention to file a claim and a claim in that the former need not state "the items of damage or injuries and the sum claimed." This distinction was not lost on the Third Department as Ferrugia, supra and Epps, supra demonstrate.

Moreover, a jurisdictional defect may not be corrected by amendment of the original claim (Grande v State of New York, 160 Misc 2d 383; Ferrer v State of New York, 172 Misc 2d 1) nor may the Court issue an order nunc pro tunc allowing a claimant to correct a jurisdictional defect by requiring something to be done which was not done (Martin v State of New York, supra, at 805).

The claim is, accordingly, dismissed without prejudice to the making of a timely application for late claim relief under Court of Claims Act § 10 (6).

May 22, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated February 4, 2002;
  2. Affirmation of G. Lawrence Dillon dated February 4, 2002 with exhibits;
  3. Letter dated February 7, 2002 from John McGinnis