New York State Court of Claims

New York State Court of Claims

KENYON v. STATE OF NEW YORK, #2006-015-067, Claim No. 111439, Motion No. M-70944


Based upon Lepkowski v Sate of New York, 1 NY3d 201, court dismissed claim due to its failure to state items of damage and total sum claimed.

Case Information

1 1.The caption of this claim was amended by order dated December 2, 2005
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of this claim was amended by order dated December 2, 2005
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
The DeLorenzo Law Firm, LLPBy: Paul E. DeLorenzo, Esquire
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Glenn C. King, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 15, 2006
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's pre-answer motion to dismiss the claim for lack of jurisdiction is granted. The claim filed on September 29, 2005 seeks to recover unspecified damages for personal injuries sustained on July 27, 2005 when claimant's motor vehicle encountered a two foot differential in the height of certain sections of the Dunn Memorial Bridge as she traveled to the Empire State Plaza from the northbound lanes of I-787 in the City of Albany. Defendant moved to dismiss the claim on the ground that it fails to state a total sum claimed as required by the Court of Claims Act § 11 (b). Claimant's attorney submitted an "affidavit in opposition to the defendants State of New York's Motion to Dismiss and also in support of our motion to amend the claim to include total amount of monetary damages." However, neither a notice of motion nor, more properly, a notice of cross-motion accompanied counsel's affidavit (see CPLR 2211). Claimant's opposition attempts to distinguish the facts of this case from the facts presented in Lepkowski v State of New York (1 NY3d 201) and references the Legislature's 2003 amendment to CPLR 3017 prohibiting the inclusion of the amount of damages in actions to recover for personal injuries or wrongful death commenced on or after November 27, 2003 as representative of a trend "to omit monetary damages as they provide unnecessary and useless information".

While the legislative change to CPLR 3017 is of interest from an academic standpoint it has no application here since the Legislature failed to correspondingly amend Court of Claims Act section 11(b) which specifically requires, inter alia, that a claim include "the items of damage or injuries claimed to have been sustained and the total sum claimed."

It is well established that the pleading requirements set forth in Court of Claims Act § 11 (b) are jurisdictional in nature and are to be strictly construed (see Lepkowski v State of New York, 1 NY3d 201; Lichtenstein v State of New York, 93 NY2d 911, 913, quoting Dreger v New York State Thruway Auth., 81 NY2d 721, 724). It is equally settled that, unlike pleadings in Supreme Court, a defective claim cannot be cured by amendment if the defect is deemed to be jurisdictional (Manshul Constr. Corp. v State Ins. Fund, 118 AD2d 983; Ferrer v State of New York, 172 Misc 2d 1; Cannon v State of New York, 163 Misc 2d 623; Grande v State of New York, 160 Misc 2d 383). In fact, a jurisdictional defect may even be raised by the Court sua sponte (Matter of Fry v Village of Tarrytown, 89 NY2d 714; Chapman v State of New York, 261 AD2d 814).

Moreover, in Lepkowski v State of New York, supra at 206-207, the Court of Appeals stated:
The State's waiver of immunity from suits for money damages is not absolute, but rather is contingent upon a claimant's compliance with specific conditions placed on the waiver by the Legislature (see Court of Claims Act § 8 [specifying that the State waives its immunity from liability and action 'provided the claimant complies with the limitations' of article II of the Court of Claims Act, which includes section 11]; see also Alston v State of New York, 97 NY2d at 163). Further, '[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed' (Lichtenstein v State of New York, 93 NY2d 911, 913 [1999], quoting Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). As 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.'

In light of the Court of Appeals decision in Lepkowski, the failure to set forth the total sum claimed renders the claim jurisdictionally defective. As a result, the claim is dismissed. The request for various forms of affirmative relief contained in the affidavit of claimant's counsel may not be addressed by the Court since no motion or cross-motion seeking the relief was made by service of a notice of motion or an order to show cause (see CPLR 2211). The claimant may, however, wish to explore a future application for late claim relief pursuant to Court of Claims Act § 10 (6).

February 15, 2006
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated November 4, 2005;
  2. Affirmation of Glenn C. King dated November 4, 2005;
  3. Affidavit of Paul E. DeLorenzo sworn to December 2, 2005 with exhibit.