Pre-Answer Motion to Dismiss Claim, Affirmation, with Exhibits 1,2
Filed Papers: Claim.
In his filed claim, claimant alleges that he was sexually assaulted by an
unnamed correction officer during a "cavitie (sic) search" on December 29, 2004,
at a time when he was incarcerated at Mid-State Correctional Facility.
Defendant contends that the claim fails to comply with the requirements of
§ 11(b) in that it does not specify the items of damage or injuries claimed
to have been sustained, or the total sum claimed. Furthermore, defendant
contends that the claim fails to provide sufficient information to enable the
State to identify and/or investigate the occurrence, since claimant has
allegedly failed to provide any specific acts or omissions that form the basis
of liability, and has also failed to name the State officers or employees
allegedly involved in this incident.
Claimant has failed to submit any papers in opposition to this motion.
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). However, 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). Under § 11(b), the five specific substantive
conditions are (1) the nature of the claim, (2) the time when it arose, (3) the
place where it arose, (4) the items of damage or injuries claimed to have been
sustained, and (5) the total sum claimed (Lepkowski v State of New
York, supra). Under Lepkowski, therefore, it is clear that
the substantial compliance standard of Heisler does not relieve a
claimant from the obligation to address all five of the specific substantive
conditions mandated by § 11(b).
In this matter, claimant has failed to set forth in his claim the total sum
sought as damages against the State, failing to satisfy one of the literal
requirements of Court of Claims Act § 11(b). A failure to do so has
previously been determined, in and of itself, a jurisdictional defect requiring
dismissal of the claim (see Shabazz v Goord, Claim No. 109114, Motion No.
M-68390; see also Kolnacki v State of New York, Claim No. 103121, Motion
No. M-69444). As a result, and pursuant to the dictates of Lepkowski,
this Court must find that the claim is jurisdictionally defective.
Since this claim must be dismissed based upon claimant's failure to satisfy one
of the five specific substantive conditions of § 11(b), it is not necessary
for this Court to address the remaining contentions set forth by defendant in
Based upon the foregoing, therefore, it is
ORDERED, that Motion No. M-69953 is hereby GRANTED; and it is further
ORDERED, that Claim No. 110547 is hereby DISMISSED.