New York State Court of Claims

New York State Court of Claims

HERBERT v. THE STATE OF NEW YORK, #2006-028-565, Claim No. 109278, Motion No. M-71504


A bailment Claim that does not include an itemized list of the property alleged to be missing is not jurisdictionally defective as failing to comply with the pleading requirements of Court of Claims Act § 11 (b) (see Lepkowski v State of New York, 1 NY3d 201 [2003]; Kolnacki v State of New York, 28 AD3d 1176 [4th Dept 2006], Morris v State of New York, 27 AD3d 282 [1st Dept 2006]).

Case Information

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:
Defendant’s attorney:
BY: Kathleen M. Arnold, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 11, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Defendant’s motion for an order of dismissal:

1. Notice of Motion and Supporting Affirmation of Kathleen M. Arnold, with annexed Exhibit

2. Affidavit in Opposition (None received)

Filed papers: Claim - Answer

This bailment claim arose when Claimant, an inmate of the State prison system, was transferred from Coxsackie Correctional Facility to Lakeview Shock Incarceration Facility. His property had been packed at Coxsackie on November 5, 2003, and he did not see his property again until December 16, 2003, at which time he noticed that several items were missing. The officer present while Claimant viewed his property advised Claimant to put in an institutional claim for the missing items. Claimant alleged that he did so and then unsuccessfully appealed its denial (Claim, page 2). Claimant also stated that his Claim was being served and filed within 120 days of the exhaustion of such remedies (see Court of Claims Act § 10[9]). The Claim sets forth the total sum sought ($415.00) but it does not itemize the missing property.

Defendant has moved for dismissal of this claim on the ground that it “fails to state the items of damage as required by Court of Claims Act § 11(b)” (Arnold Affirmation, ¶ 2). Defense counsel relies on Lepkowski v State of New York (1 NY3d 201 [2003]) for the proposition that each of the five substantive requirements of section 11(b)[1] must be expressly set forth in the Claim itself and that if they are not, the Claim is jurisdictionally defective and cannot be amended to supply the missing information.

Recent appellate decisions have departed from this extremely literal interpretation of the Lepkowski decision. In Morris v State of New York (27 AD3d 282 [1st Dept 2006]), the Claim failed to state the total sum claimed, but the First Department found that defect was not fatal. The situation in Morris was determined to be “readily distinguishable” from that in Lepkowski, where multiple claimants “did not allege sufficient information to allow the State to investigate and assess its potential liability for unpaid overtime, e.g., when and where the overtime hours were worked and the total amount of unpaid overtime claimed” (id. [emphasis supplied]). Morris, in contrast, was an action for assault and alleged violation of constitutional rights, and consequently informing defendant of the total sum of damages sought by the claimant would not provide any information about the facts underlying the cause of action or about the possibility of Defendant’s being found liable. In other words, the court concluded, even without the information provided by an ad damnum clause, the State had been given “adequate information to investigate the claim” (id.). One of the decisions referenced as authority for Morris holding was Hamilton v State of New York (11 Misc 3d 650 [Ct Cl 2005]) which referenced a portion of the Lepkowski decision indicating that the State’s ability to investigate the claim promptly and to ascertain its potential liability under the circumstances to be “the guiding principle informing section 11(b)” (11 Misc 3d at 657, quoting Lepkowski v State of New York, 1 NY3d at 207, citing to Heisler v State of New York, 78 AD2d 767 [4th Dept 1980]).

The Fourth Department has also concluded that, in certain cases, a claimant’s failure to set forth the ‘total sum claimed’ is not a fatal jurisdictional defect (Kolnacki v State of New York, 28 AD3d 1176 [4th Dept 2006], citing to Morris, supra). In Kolnacki, the damages suffered by the claimant were in the nature of pain and suffering, medical expenses. In other words, unlike the situation in Lepkowski (supra) but similar to that in Morris (supra), providing the defendant with information about the specific amount sought as damages would not add any relevant information about the nature of the alleged wrong or the potential for liability. The majority in Kolnacki concluded that the information set forth in the Claim, even without the statement of a total sum claimed, provided sufficient information to allow the State to investigate and assess its potential liability. Two dissenting justices, however, did not interpret the Court of Appeals in Lepkowski to suggest “either that only substantial compliance with the statute is required or that the statutory requirements can be ignored depending on the facts of the case 11 (28 AD3d 1176, Martoche and Hayes,JJ. [dissenting]). Leave to appeal to the Court of Appeals has been granted (2006 WL 1586041[4th Dept 2006]), and it is anticipated that in that court’s decision, the correct interpretation of Lepkowsk’s language will be identified and explained.

Until then, however, this Court is bound by the two appellate decisions, although it sits in the Third Department which has not spoken on the issue (Statutes § 72[b]; Mountain View Coach Lines, Inc. v Storms, 102 AD2d 663 [2d Dept 1984] [“the doctrine of stare decisis requires trial courts in this department to follow precedents set by the Appellate Division of another department until the Court of Appeals or [the Appellate Division of this department] pronounces a contrary rule”], cited with approval in People v Turner, 5 NY3d 476 [2005]).

Although the asserted defect in this Claim is not the absence of an ad damnum clause, an itemized list of the property alleged to be lost is not needed in order for Defendant to properly investigate the underlying events giving rise to the claim or assess its potential liability in the action. Indeed, this missing information is readily available to Defendant, as such a list was required for and would be part of the record of Claimant’s institutional claim and appeal. In addition, it could well be argued that statute’s requirement that a Claim indicate “the items of damage or injuries claimed to have been sustained” necessarily means that, in a bailment action, an itemized list of specific property must be included in the Claim. It could well be argued that Claimant’s allegation that he no longer possesses “a large amount of my personal property” is sufficient to meet the statutory criteria, even if the more literal reading of Lepkowski is applied.

For the reasons set forth above, Defendant’s motion is DENIED.

October 11, 2006
Albany, New York

Judge of the Court of Claims

[1]. These substantive content requirements are that the claim state (1) the time when the claim arose; (2) the place where the claim arose; (3) the nature of the claim; (4) the items of damage or injuries alleged to have been sustained; and (5) the total sum claimed.