Defendant has filed this post-trial motion seeking dismissal of the
claim for failure to plead the amount of damages as required by Court of Claims
Act § 11 (b). The Court will grant the motion.
The Court has reviewed
the following documents in connection with this motion.
1. Notice of Motion,
dated December 3, 2004, filed December 6, 2004;
2. Supporting Affirmation of
Paul Volcy, dated December 3, 2004, with attached exhibits;
3. Memorandum of
Law of Paul Volcy, dated December 3, 2004;
4. Affidavit in Opposition of
David O. Teach, sworn to February 8, 2005, filed February 14, 2005, with
Claimant filed this suit to recover for injuries sustained
in a fall at Artpark on July 8, 2000. The matter proceeded to a trial of
liability issues only on January 5, 6, and 26, 2004. At the commencement of
trial Defendant made an oral motion to dismiss the claim for lack of subject
matter jurisdiction based upon the failure to allege the amount of damages
claimed, as set forth within Court of Claims Act § 11 (b). The Court
denied the motion without prejudice to a formal motion that complied with the
notice and service provisions of CPLR 2214. On August 9, 2004 this Court filed
its Decision in the liability trial, holding for Claimant in limited part
(see Kolnacki v State of New York
, Ct Cl, July 12, 2004, Hudson, J., UID
Defendant then filed the dismissal motion now before this Court. Oral argument
was heard on February 16, 2005, and decision reserved. The Court will now grant
Defendant’s motion and dismiss the claim.
Mrs. Kolnacki tendered two
claims in this matter. The first, an unverified pleading that was never filed,
was served by ordinary mail on or about July 27, 2000, and failed to state the
amount of damages claimed. Defendant’s answer raised ten affirmative
defenses, including lack of personal and subject matter jurisdiction. The ninth
affirmative defense stated: “[t]he contents of the Notice of
served herein do not comply with the provisions of Section 11 of the Court of
Claims Act.” (Answer, ¶ 14).
Mrs. Kolnacki thereafter filed and served a claim on or about September 25,
2000. That pleading was verified and properly served upon the Attorney General,
but once again failed to set forth any damage claims.
Her verified bill of particulars, served on or about October 25, 2000, also
failed to specify any dollar amount of damages. At no time did Claimant move to
amend the claim, or seek leave to file and serve a late claim.
State’s waiver of its sovereign immunity from money damage claims is not
absolute. Court of Claims Act § 8 instead conditions that consent to be
sued upon compliance with the provisions of article II of that statute, which
includes Court of Claims Act § 11 (b). Section 11 (b) inter alia requires
that “[t]he claim shall state . . . the total sum claimed.”
Critically, the statutory requirements conditioning suit, which are in
derogation of the common law, must be strictly construed (Lepkowski v State
of New York
, 1 NY3d 201, 206-207 ; Finnerty v New York State
, 75 NY2d 721 ). A claim that fails to conform with the
substantive pleading requirements of section 11 (b), including the statement of
damages claimed, is jurisdictionally defective (see Lepkowski
, 1 NY3d at
208-209). Such failures of subject matter jurisdiction cannot be waived, and
may be raised at any time (see Finnerty,
75 NY2d at 723 [addressing the
jurisdictional nature of the service provisions of section 11]).
has asserted that the State was not prejudiced by the failure to include the
amount of damages because it had ample opportunity through the discovery
conducted in this matter to explore the particulars of the claim. Even assuming
that the State could readily investigate damage issues, Claimant would not be
relieved of her jurisdictional obligation to set forth the total sum claimed.
“The Court of Claims Act does not require the State to ferret out or
assemble information that section 11 (b) obligates the claimant to
, 1 NY3d at 208, citing Cobin v State of New
, 234 AD2d 498, 499 ). Claimant also has urged that unlike
, where several of the allegations required under section 11 (b)
had not been addressed, her sole pleading deficiency involved the damage clause.
For that reason Ms. Kolnacki contends that she should be deemed to have
substantially complied with the statutory pleading requirements. The Court is
mindful that precision in pleading is not required under section 11 (b).
“What is required is not absolute exactness, but simply a statement made
with sufficient definitiveness to enable the State to be able to investigate the
claim promptly and to ascertain its liability under the circumstances. The
statement must be specific enough so as not to mislead, deceive or prejudice the
rights of the State. In short, substantial compliance with section 11 is what
is required” (citations omitted) (Heisler v State of New York
AD2d 767 ). Under Lepkowski
, however, it is clear that the
substantial compliance standard does not relieve a claimant from the need to
address all five of the pleading mandates of section 11 (b); rather, the
standard simply allows for flexibility in weighing the adequacy of the
allegations addressed to each of those pleading requirements (see
, 1 NY3d at 208-209 [addressing the minimum requirements needed to
sustain the claim therein]). Since Claimant completely failed to address the
damage question, she could not have sustained that burden under any standard of
Based upon the above, it is hereby
Defendant’s motion to dismiss is granted. The claim is dismissed and the
Chief Clerk of the Court is hereby directed to close the file.