New York State Court of Claims

New York State Court of Claims

LaMountain v. THE STATE OF NEW YORK, #2006-015-125, Claim No. 111563, Motion No. M-71937


Synopsis


Motion to amend claim was denied where the proposed amendment was jurisdictionally defective because it failed to include the total sum claimed as damages.

Case Information

UID:
2006-015-125
Claimant(s):
RONALD La MOUNTAIN
Claimant short name:
LaMountain
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111563
Motion number(s):
M-71937
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Ronald La Mountain, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Kevan J. Acton, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 25, 2006
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant's motion to amend the claim to change the previously stated items of damage is denied. The instant claim seeks to recover $9,883.00 in damages for lost or damaged personal property pursuant to Court of Claims Act § 10 (9). Claimant now moves to amend the claim without attaching a proposed amended claim to his motion papers.

Although defense counsel submitted an affirmation in response espousing no position on the motion, the Court declines to grant it. Paragraph "11" of the claim sets forth seven items of damage totaling $9,883.00. In claimant's affidavit in support of the instant motion he states the following:

The amended portions for requested relief of the claimant's claim, shall read as follows:
MONETARY RELIEF SOUGHT

36 - Personal Photographs missing from Photo-Album: $81.00

60 - Loose personal photographs missing, at an prison commissary

replacement value, (per the Great Meadow Correctional

Facility). (See, Exhibits attached):............................. $ 90.00

Cost for replacement of lost GED Diploma and High School

Transcript. (See, Exhibits attached). $ 14.00

Cost for replacement of claimant's Paralegal/Legal Assistant

Course Transcripts and Paralegal/Legal Assistant
Certificate.................................................................. $440.00
Cost for replacement of damaged Photo-Album: $ 3.00

Claimant's cost and requested reimbursements for prosecuting

this above-entitled action............................................ $150.00

Claimant further requests of the court to award pre-judgement and post-judgement interests at 9% ($ .12 DIEM), from the date of filing of the above-entitled action with the court, to the date of payment.

It is unclear from his affidavit whether claimant intended to withdraw any or all of the previously alleged items of damage since he has not included in the above-quoted supporting affidavit a newly proposed total sum claimed. The absence of the total sum claimed, described by the Court of Appeals in Lepkowski v State of New York (1 NY3d 201, 207) as a "substantive condition[s] upon the State's waiver of sovereign immunity", renders the proposed amendment jurisdictionally defective.

It would be improper to allow a jurisdictionally defective amendment of the claim (see Mathiesen v Mead, 168 AD23d 736, 737; CFJ Assocs. of N.Y. v Hanson Indus., 260 AD2d 917). Consequently, the instant motion is denied without prejudice to another motion properly supported by a proposed amended claim (see Combes v State of New York, Ct Cl, August 31, 2004 [Claim No. 109385, Motion Nos. M-68742, M-68743] Lebous, J., unreported[1]).



September 25, 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 June 27, 2006;
  2. Affidavit of Ronald LaMountain sworn to June 27, 2006 with exhibits;
  3. Affirmation of Kevan J. Acton dated July 5, 2006.

[1].Unreported decisions from the Court of Claims are available via the internet at http://www.nyscourtofclaims.state.ny.us./decision.htm.