New York State Court of Claims

New York State Court of Claims

SHABAZZ v. COMMISSIONER GLENN S. GOORD, as COMMISSIONER OF THE NYS DEPARTMENT OF CORRECTIONAL SERVICES, #2004-009-53, Claim No. 109114, Motion No. M-68390


Synopsis


Defendant's motion to dismiss the claim based upon claimant's failure to set forth the total sum claimed in his claim was granted pursuant to Lepkowski.

Case Information

UID:
2004-009-53
Claimant(s):
SHERON SHABAZZ
Claimant short name:
SHABAZZ
Footnote (claimant name) :

Defendant(s):
COMMISSIONER GLENN S. GOORD, as COMMISSIONER OF THE NYS DEPARTMENT OF CORRECTIONAL SERVICES
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109114
Motion number(s):
M-68390
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
SHERON SHABAZZ, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
September 13, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The State has brought this pre-answer motion seeking an order dismissing the claim. The following papers were considered by the Court in connection with this motion:
Pre-Answer Motion to Dismiss Claim, Affirmation, with Exhibits 1,2


Correspondence dated May 3, 2004 from Claimant 3

Filed Papers: Claim.

The State has moved to dismiss this claim, contending 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 the claim fails to state a sum certain as required by Court of Claims Act § 11(b). In response to this motion, claimant has submitted an unsworn statement dated May 3, 2004 (see Item 3).

In his filed claim, claimant seeks to recover damages for personal injuries allegedly suffered by him on January 11, 2004 at Mohawk Correctional Facility, where he was then incarcerated. Claimant alleges that he was running across a wet floor when he slipped and fell, causing damages to his head and lower back. He further alleges that there were no caution signs advising inmates that the floor was wet. Furthermore, he alleges that a correction officer had directed him to run across the floor to pick up a bowl of food.

In order to satisfy the requirements of Court of Claims Act § 11(b), the allegations set forth in a claim must be sufficiently definite so as to allow the State to investigate the claim properly and ascertain its potential liability under the circumstances. Substantial compliance with this section, rather than absolute exactness, is required (Heisler v State of New York, 78 AD2d 767).

Contrary to the assertions made by defendant's counsel, claimant's allegations set forth in the instant claim contain sufficient detail regarding the incident to satisfy the requirements of § 11(b), and the existence of a potential negligence cause of action against the State.

Defendant, however, has also moved to dismiss this claim based upon claimant's failure to set forth the total sum claimed in his claim as also required by § 11(b).

Since actions against the State are permitted only through the State's waiver of sovereign immunity, statutory requirements conditioning suits must be strictly construed (Lichtenstein v State of New York, 93 NY2d 911). Recently, the Court of Appeals has examined the provisions of § 11(b), and has determined that a claim must contain the "specific substantive conditions upon the State's waiver of sovereign immunity" (Lepkowski v State of New York, 1 NY3d 201, 207). The Court included "the total sum claimed" as one of the "specific substantive conditions" which must be included in a claim against the State (Lepkowski v State of New York, supra).

In this matter, it is undisputed that claimant has failed to set forth in this claim the total sum sought as damages against the State for its alleged negligence, failing to satisfy one of the literal requirements of Court of Claims Act § 11(b). As a result, and pursuant to the dictates of Lepkowski, this Court must find that the claim is jurisdictionally defective.

In his unsworn statement submitted in response to this motion, claimant has requested permission to amend his claim to correct this omission. However, 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).

Although this claim is jurisdictionally defective and must be dismissed, claimant, at his option, may explore the option of late claim relief pursuant to Court of Claims Act § 10(6).

Based on the foregoing, it is therefore

ORDERED, that Motion No. M-68390 is hereby GRANTED; and it is further

ORDERED, that Claim No. 109114 is hereby DISMISSED.


September 13, 2004
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims