New York State Court of Claims

New York State Court of Claims

CLARK v. THE STATE OF NEW YORK, #2006-015-117, Claim No. 110992, Motion Nos. M-71762, M-71797


Claim failed to comply with the pleading requirements of Court of Claims act § 11 (b) as it failed to adequately set forth the nature of the claim.

Case Information

1 1.The caption of the claim is amended sua sponte to name the only appropriate defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of the claim is amended sua sponte to name the only appropriate defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-71762, M-71797
Cross-motion number(s):

Claimant’s attorney:
C. Kenneth Foit, Esquire
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Glenn C. King, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 25, 2006
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion to dismiss the claim for lack of subject matter jurisdiction is granted. Claimant's motion for an order changing venue from the Albany District of the Court of Claims to the Buffalo District[2] is denied as moot. The instant claim filed June 13, 2005 in relevant part states the following:
3. The items of damage are for personal injuries, pain, distress, humiliation, and suffering sustained by the claimant through the intentional and continuing tort(s) of officer(s) or employee(s) of the state while acting as such officer(s) or employee(s), in that, the a [sic] course of employment reprisal and/or retaliation was engaged in with respect to claimant and his employment. The total sum claimed is FIVE HUNDRED THOUSAND DOLLARS ($500,000.00).

4. The time, date and place where the injuries were sustained commenced on and after April 20, 1995 and thereafter the officer(s) or employee(s) of the state while acting as such officer(s) or employee(s), continued their course of employment reprisal and or retaliation on an uninterrupted, sustained basis until the present, and, as such, and for other reasons, this is thus deemed timely filed.

Claimant has not filed a bill of particulars with the Court as required by the Uniform Rules for the Court of Claims (22 NYCRR 206.5 [c]) and has not otherwise specified what acts or omissions on the part of State officers or employees are alleged to have given rise to the claim.

Defendant's answer inter alia alleges that the claim fails to state a cause of action, is untimely and that the Court lacks jurisdiction in that the claim does not particularize the defendant's allegedly tortious conduct. The defendant now moves to dismiss the claim. Claimant opposed the motion and by separate motion seeks an order changing venue.

In Lepkowski v State of New York, (1 NY3d 201, 207) the Court of Appeals held that a claim must satisfy the "five specific substantive conditions upon the State's waiver of sovereign immunity" contained in Court of Claims Act § 11 (b) by specifying: " (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 strictly construed the Court of Claims Act provisions conditioning suit against the State stating: "[t]he Court of Claims Act does not require the State to ferret out or assemble information that section 11 (b) obligates the claimant to allege (Cobin v State of New York, 234 AD2d 498, 499)" (id. at 208).

As the above-quoted portion of the claim reveals, the instant claim fails to state the nature of the claim since it contains no specific allegations relating the acts or omissions of State officers, employees or agents upon which liability is sought to be predicated (see Grumet v State of New York, 256 AD2d 441; Heisler v State of New York, 78 AD2d 767). Nor does the claim set forth the place where it arose. For these reasons the claim must be dismissed, rendering defendant's other stated grounds for relief academic. Dismissal also makes moot claimant's motion for a change of venue.

August 25, 2006
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:

Motion No. M-71762
  1. Notice of motion dated May 18, 2006;
  2. Affirmation of Glenn C. King dated May 18, 2006;
  3. Affidavit of David A. Clark sworn to May 30, 2006;

Motion No. M-71797

1. Notice of Motion dated May 1, 2006;
  1. Affidavit of David A. Clark sworn to May 4, 2006 with exhibit;
  2. Affirmation of Glenn C. King dated June 7, 2006.

[2].See 22 NYCRR 206.4.