New York State Court of Claims

New York State Court of Claims

BOHL v. THE STATE OF NEW YORK, #2006-015-066, Claim No. NONE, Motion No. M-71002


Synopsis


Court granted second application for late claim relief to movant despite absence of language in proposed claim that claimant sustained a serious personal injury as defined in Insurance Law § 5102 (d) as required by CPLR 3016 (g).

Case Information

UID:
2006-015-066
Claimant(s):
KATHLEEN M. BOHL
Claimant short name:
BOHL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-71002
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Paul F. Dwyer, Esquire
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Frederick H. McGown, III, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 15, 2006
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Movant's application for late claim relief pursuant to Court of Claims Act § 10 (6) is granted. Movant shall file a verified claim containing language sufficient to satisfy CPLR 3016 (g) with the Clerk of the Court within 45 days of the filing of this decision and order. The claim shall also be served upon the Attorney General either personally or by certified mail, return receipt requested within the same 45 day period. By decision and order dated October 14, 2005 the Court denied a prior application for the same relief sought in the instant motion. In doing so the Court addressed the six statutory factors set forth in Court of Claims Act § 10 (6) after determining that the claim was not barred by the applicable three year Statute of Limitations (CPLR 214 [5]). These factors need not be addressed by the Court herein as defense counsel stated in correspondence dated December 16, 2005 that the defendant does not oppose the motion "[i]n light of the fact that the claimant has corrected all areas of defendant's opposition in [sic] the earlier motion (M-70515)."

The Court, however, is troubled by the fact that the proposed claim submitted on this motion still lacks language which could be viewed as satisfying CPLR 3016 (g). Nowhere does the proposed claim allege that claimant sustained a serious injury as defined in subsection (d) of section 5102 of the Insurance Law, or economic loss greater than basic economic loss as defined in subsection (a) of section 5102 of the Insurance Law. Since this defect was not objected to by the defendant and it is not one of the five substantive conditions upon which the State's waiver of sovereign immunity is based (see Lepkowski v State of New York, 1 NY3d 201) the Court hereby directs claimant to add the language mandated by CPLR 3016 (g) to the claim prior to filing and service.

Claimant's motion for late claim relief is granted.


February 15, 2006
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated November 22, 2005;
  2. Affidavit of Paul F. Dwyer sworn to November 21, 2005 with exhibits;
  3. Affidavit of Kathleen M. Bohl sworn to November 21, 2005 with exhibits.
  4. Letter dated December 16, 2005 from Frederick H. McGown, III.