New York State Court of Claims

New York State Court of Claims

GRANSBURY v. THE STATE OF NEW YORK, #2006-015-108, Claim No. 110233, Motion Nos. M-71684, CM-71719


Action for wrongful death and conscious pain and suffering plus a parental derivative action dismissed for lack of jurisdiction due to claimant's failure to state the total sum claimed.

Case Information

In the Matter of the Claim of FRANCES C. GRANSBURY, Individually and as Administratrix of the ESTATE OF KEITH D. GRANSBURY, JR., 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:
Dreyer Boyajian, LLPBy: Brian W. Devane, Esquire
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Kevan J. Acton, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 21, 2006
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion pursuant to CPLR 3211 (a) (2) and Court of Claims Act § 11 for an order dismissing the claim for lack of jurisdiction is granted. Claimant's cross-motion for an order permitting the claim to be amended to insert an ad damnum clause is denied. This claim seeks to recover damages for the conscious pain and suffering and wrongful death of claimant's decedent as well as a derivative claim by the claimant individually. The claim arose out of a September 24, 2003 motorcycle/motor vehicle accident on State Route 9W at its intersection with an entrance/exit to Ravena-Coeymans- Selkirk High School. The defendant is alleged to have been negligent in designing, creating and permitting an inadequate traffic control device at the intersection and in allowing a posted speed limit of 55 miles per hour in a school zone.

The defendant moved to dismiss the claim for lack of jurisdiction based upon claimant's failure to state a total sum claimed as prescribed by Court of Claims Act § 11 (b). Claimant opposed the motion and cross-moved to amend the claim to include an ad damnum clause.

Court of Claims Act § 11 (b), in relevant part, provides:
b. 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.

In Lepkowski v State of New York, 1 NY3d 201, 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'.

Despite the seemingly clear exposition of this matter by the Court of Appeals a unanimous panel of justices in the Appellate Division, First Department in Morris v State of New York, 27 AD3d 282, and a three justice majority (two dissenters) in the Appellate Division, Fourth Department in Kolnacki v State of New York, 28 AD3d 1176 have separately held that the failure to state the total sum claimed in a claim filed in the Court of Claims is not a fatal defect requiring dismissal. Although the Court of Appeals on June 9, 2006 granted the State's motion for leave to appeal Kolnacki (supra), that appeal has not yet been decided.

The Court's research reveals that the Appellate Division, Third Department has not yet addressed this subject and this Court's reading of the language of Lepkowski quoted above does not permit the interpretation afforded it by either the First or Fourth Department. Since the Court of Appeals has spoken on the issue this Court need not follow Morris (supra) or Kolnacki (supra) (see 1 Carmody-Wait 2d NY Prac § § 2: 275, 276 ).

Accordingly, the defendant's motion to dismiss the instant claim is granted and claimant's cross-motion to amend the claim to insert an ad damnum clause is denied.

July 21, 2006
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated May 4, 2005;
  2. Affirmation of Kevan J. Acton dated May 4, 2005;
  3. Notice of cross-motion dated May 12, 2006;
  4. Affidavit of Brian W. Devane sworn to May 12, 2006 with exhibits.