New York State Court of Claims

New York State Court of Claims
ANWAR v. THE STATE OF NEW YORK, #2005-016-061, Claim No. 108813, Motion Nos. M-70072, CM-70313

Claim for medical malpractice was dismissed for failure to include the total sum claimed.
Case Information
In the Matter of the Claim of the Estate of MUHAMMAD ANWAR, Deceased, by SAIMA NASIR, as Administratrix and QALSOOM AKHTAR, individually as wife of the deceased
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:
Salenger, Sack, Schwartz & KimmelBy: Carolyn M. Caccese, Esq.
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: Mary Y. J. Kim, AAG
Third-party defendant’s attorney:

Signature date:
September 20, 2005
New York

Official citation:

Appellate results:
AFFIRMED 41 AD3D 677 2D DEPT 6/19/07
See also (multicaptioned case)


On September 26 and 27, 2001, Muhammad Anwar underwent cardiothoracic testing and surgery at SUNY Downstate Medical Center. Within days, on October 2, Mr. Anwar lapsed into a coma and remained that way until his death on May 25, 2003. Claim, ¶¶7 and 8. On January 5, 2004, Letters of Administration were issued to Saima Nasir by the Surrogate of Kings County. Id., ¶2. It is undisputed that the claim was then served and filed in a timely fashion. However, the claim failed to include a total sum in damages.
Claimants moved first on the matter. Their notice of motion seeks an order which would either permit the amendment of the claim to include a sum of damages or to withdraw the claim and substitute the claim presented with the motion, which specifies the amount of total damages. Defendant then cross-moved to dismiss the claim, and opposed claimants’ request to amend or substitute.
Section 10 of the Court of Claims Act (the “Act”) governs the time periods for filing and serving claims and notices of intention to file a claim.
Subdivision a of §11 of the Act governs the methods of service and filing. Subdivision b of such section covers the contents of the claim (and notice of intention) and requires that the claim be verified.
More specifically, §11(b) provides that the “claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed.”
Subdivision b provides that a notice of intention to file a claim shall set out the same matters as a claim except that “the items of damage or injuries and the sum claimed need not be stated.”
Subdivision c, when added in 1990, required that an objection or defense based upon the failure of a claim to comply with the time limitations of §10 of the Act or the service requirements of subdivision a of §11 is waived unless raised in the answer or by a pre-answer motion to dismiss. Subdivision c was recently amended: an objection based on a missing or inadequate verification would also be deemed waived if not objected to by defendant in its answer or pre-answer motion (Chapter 460 of the Laws of 2005).
A result that would dismiss the claim of Anwar by Nasir solely for the failure to set forth a total sum claimed is unfair - - but unavoidable. It is unavoidable because of the line of Court of Appeals cases holding that the requirements of §§10 and 11 of the Act are to be strictly construed and that such requirements are jurisdictional. Claims with jurisdictional defects cannot be revived except via late claim relief pursuant to §10.6 of the Act. See, e.g., Manshul Construction Corp. v State Insurance Fund, 118 AD2d 983, 500 NYS2d 87 (3d Dept 1986); Grande v State of New York, 160 Misc 2d 383, 609 NYS2d 512 (Ct Cl 1994).
In Finnerty v New York State Thruway Authority, 75 NY2d 721, 722-23, 551 NYS2d 188, 189-90 (1989) (citations omitted), the Court of Appeals upheld the dismissal of a late claim because it was not served on the attorney general:
It is settled that the State as sovereign may not be sued except with its consent, that it may attach such terms and conditions to its consent as the Legislature deems proper, and that such terms and conditions are jurisdictional requirements . . . and, therefore, must be strictly construed . . .

Similarly, the Court of Appeals upheld the dismissal of three claims for failure to serve a copy of the claim as required by §11 of the Act, stating that the statutory requirements of the Act conditioning suit must be “strictly construed.” Dreger v New York State Thruway Authority, 81 NY2d 721, 724, 593 NYS2d 758, 759 (1992). In one of the three cases decided together in Dreger, the Thruway Authority was served, but not the Attorney General; in the other two, the claims were mailed, but were not sent by certified mail, return receipt requested, as §11 requires. See also Lichtenstein v State of New York, 93 NY2d 911, 913, 690 NYS2d 851, 852 (1999).
Until recently, there had been no reported case in which dismissal was based solely on the failure to include the total sum of damages; in December of 2003, the Court of Appeals in Lepkowski v State of New York, 1 NY3d 201, 770 NYS2d 696, indicated that such result was necessarily implied. The facts in Lepkowski and the flaws in the pleadings there were considerably different from those in the instant case. Mr. Lepkowski was the lead claimant for several hundred State employees seeking recovery for unpaid overtime compensation.
The Lepkowski Court noted that statutory requirements conditioning suit against the State “must be strictly construed” and stated that, “[a]s relevant here, section 11 (b) places five specific substantive conditions upon the State’s waiver of sovereign immunity by requiring the claim to specify (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.” The Court found that the claims in question were “jurisdictionally defective for nonconformity with section 11 (b)’s substantive pleading requirements” in that they satisfied only item one -- the nature of the claim -- and failed to comply with the requirement of stating time, place, items of damages and total sum claimed. 1 NY3d at 207-09; 770 NYS2d at 700-01.
According to the Court, “[t]hese claims were required, at the very least, to specify the state agency or department for which each claimant worked; the primary work location for each claimant; those work weeks in which each claimant worked overtime; the actual number of hours of overtime worked by each claimant during these work weeks; and the total sum of damages sought by each claimant as unpaid overtime as of the date of filing.” 1 NY3d at 208-09; 770 NYS2d at 701.
Subsequent to Lepkowski, a number of Court of Claims decisions came down in which it was stated that each of the five items of §11(b), including total sum claimed, must be specified. Kolnacki v State of New York, Ct Cl, March 16, 2005 (unreported, claim no. 103121, motion no. M-69444, UID #2005-034-515, Hudson, J.)
; Cepeda v State of New York, Ct Cl, May 9, 2005 (unreported, claim no. 110547, motion no. M-69953, UID #2005-009-028, Midey, J.); Tessier v State of New York, Ct Cl, May 5, 2005 (unreported, claim no. 109692, motion nos. M-69090 and CM-69544, UID #2005-018-467, Fitzpatrick, J.); McCabe v State of New York, Ct Cl, June 24, 2004 (unreported, claim no. 108925, motion no. M-68263, UID #2004-015-413, Collins, J.); and Fardella v State of New York, Ct Cl, March 30, 2004 (unreported, claim no. 108433, motion no. M-67729, UID #2004-033-054, Lack, J.). Cf. Stewart v State of New York, Ct Cl, September 24, 2004 (unreported, claim no. 107914, motion nos. M-67585 and CM-67642, UID #2004-013-047, Patti, J.).
It was observed above that the result of dismissing the claim of the Estate of Mr. Anwar and the individual claim of his wife is unfair, but unavoidable. It is not inappropriate here to discuss why the dismissal can be characterized as unfair.

Since 1976, plaintiffs (but not claimants in the Court of Claims) have been prohibited from specifying the amount of damages in complaints for medical malpractice, because such a figure chosen at an early stage of litigation is not necessarily grounded in facts and can be prejudicial (CPLR 3017(c)). For similar reasons (since 1981), damages were not permitted to be pled in actions against municipalities (counties, cities, towns and villages).
By Chapter 694 of the Laws of 2003, the ban on damages in complaints (and related pleadings) was extended to all personal injury and wrongful death actions, but permitted in opening and closing arguments.
Then, as if to emphasize how unmoored a statement of damages is from the facts available - - until the end of a lawsuit, the following year, the law was amended to allow references thereto only during closings. (Chapter 372, Laws of 2004, amending subdivision b of CPLR Rule 4016).
In this case, claimants’ proposed new claim seeks $25 million in total damages, which represents $10 million dollars in pain and suffering for the deceased Mr. Anwar, $10 million for his distributees, and $5 million in loss of services for Ms. Akhtar, the deceased’s wife (claimants’ notice of motion, exh E, ¶¶34, 36, 37 & 38). There is also a request for $500,000 in medical bills (Id., ¶ 39).
As noted, under §11(b), the notice of intention to file a claim does not require the total sum claimed (or the items of damage or injury). Yet under §10.8 of the Act, a notice of intention without a total sum can, upon application, ripen into a claim. Michael v State of New York, Ct Cl, May 18, 2005 (unreported, motion no. M-68315, Marin, J.). This anomalous result could be explained by simply concluding that such is a literal interpretation of the Act. Interestingly, two Appellate Division cases, when faced with the same issue, rather than rely on the literal terms of the statute, looked instead to the limited utility of pleading damages. Barski v State of New York, 43 AD2d 767, 350 NYS2d 762 (3d Dept 1973) and Liberty Mutual Insurance Company v State of New York, 121 AD2d 694, 504 NYS2d 138 (2d Dept 1986). Both cited a Court of Claims case, McCabe v State of New York, 58 Misc 2d 823 (1969), to the effect that the sum claimed does not impact the defendant State’s knowledge or ability to investigate. In fact, Lepkowski stated that the “guiding principle informing section 11(b)”
was whether the State was able to promptly investigate the claim and determine its liability, citing a Fourth Department case, Heisler v State of New York, 78 AD2d 767, 433 NYS2d 646 (1980).
In view of the foregoing, having reviewed the parties’ submissions,
IT IS ORDERED that the defendant’s cross-motion to dismiss is granted (CM-70313); the claimants’ motion to amend their claim or substitute a new one is denied (M-70072).

September 20, 2005
New York, New York

Judge of the Court of Claims

[1] Subdivision 6 of §10 permits the filing of a late claim, and subdivision 8 of such section permits a notice of intention to file a claim to ripen into a claim, but in either event, no later than the applicable statute of limitations.
[2] Subdivision b also requires the itemization of any fixtures in an appropriation case.
  1. [3]This and other decisions of the Court of Claims may be found on the Court’s website:
[4] The Lepkowski Court did take notice of this ban on including damages in complaints from the 1976 enactment through Chapter 694 (see footnote 3, 1 NY3d at 207, 770 NYS2d at 700).
[5]1 NY3d at 207, 770 NYS2d at 700.
[6] The Court reviewed: claimants’ notice of motion with affirmation in support and exhibits A through E; defendant’s cross-motion with attached affirmation and exhibits A through F; claimants’ Supplemental Affirmation; defendant’s reply affirmation; and claimants’ reply affirmation.