New York State Court of Claims

New York State Court of Claims

CEPEDA v. THE STATE OF NEW YORK, #2005-009-028, Claim No. 110547, Motion No. M-69953


Synopsis


Defendant's motion to dismiss the claim based upon claimant's failure to state the amount of damages in his claim as required by Court of Claims Act § 11(b) was granted.

Case Information

UID:
2005-009-028
Claimant(s):
LORENZO CEPEDA
Claimant short name:
CEPEDA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110547
Motion number(s):
M-69953
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
LORENZO CEPEDA, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
May 9, 2005
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, contending that the claim fails to comply with the provisions of Court of Claims Act § 11(b). The following papers were considered by the Court in connection with this motion:
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 this motion.

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.


May 9, 2005
Syracuse, New York

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