New York State Court of Claims

New York State Court of Claims

KERIN v. CITY UNIVERSITY OF NEW YORK, #2006-030-561, Claim No. 111039, Motion Nos. M-71594 , CM-71751


Synopsis



Case Information

UID:
2006-030-561
Claimant(s):
SHARA KERIN
1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
KERIN
Footnote (claimant name) :

Defendant(s):
CITY UNIVERSITY OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111039
Motion number(s):
M-71594
Cross-motion number(s):
CM-71751
Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
CASCIONE, PURCIGLIOTTI & GALLUZZI, P.CBY: KELLY L. MURTHA, ESQ.
Defendant’s attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
BY: JOSEPH L. PATERNO, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
August 18, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The Court, in rendering its decision on the instant applications, has read and considered the following papers: (1) Notice of Motion to Amend the Claim’s ad damnum clause and strike the Defendant’s Eighth Affirmative Defense dated April 12, 2006, filed on April 20, 2006; (2) Affirmation in Support of Kelly L. Murtha, Esq., dated April 12, 2006, filed April 20, 2006, together with Exhibits “A” and “B”; (3) Notice of Cross-Motion to Dismiss dated May 11, 2006, filed on May 17, 2006; (4) Affirmation of Joseph L. Paterno, Assistant Attorney General, in Support of the Motion to Dismiss and in Opposition to the Claimant’s Motion, dated May 11, 2006, filed May 17, 2006; (5) Reply Affirmation of Kelly L. Murtha, Esq., in Support of the Notice of Motion and in Opposition to the Cross-Motion, dated May 16, 2006, filed May 16, 2006; (6) filed papers.

The Claim presently before the Court arose when the Claimant, Shara Kerin, had a water glass that had been used in her drama class, strike her in her face and mouth.

In her Affirmation in Support of the Motion, her attorney argues that absent prejudice, the Motion should be granted. She also requests that the Defendant’s Eighth Affirmative Defense be struck by the Court.

The State’s Eighth Affirmative Defense states: “[t] he Court lacks jurisdiction over the claim as claimant has failed to comply with Court of Claims Act Section 11(b) as no total sum claimed is stated.” (Verified Answer, p 4 [unpaginated]).

In his Affirmation, the Attorney for the Defendant argues that Court of Claims Act Section 11(b), and the case of Lepkowski v State of New York, 1 NY3d 201, mandates dismissal, because of the lack of an ad damnum clause. He also relies on Court of Claims cases decided subsequent to Lepkowski (see Anwar v State of New York, 2005 NY Slip Op 51813(U), 2005 NY Misc Lexis 2476, and Cepeda v State of New York, (unpublished opinion, Claim No. 110547, Motion No. M-69953, Ct Cl, May 2005, Midey, J.), as well as the dissenting opinion of the case of Kolnacki v State of New York, 28 AD3d 1176.

The attorney for the Defendant noted that all of these cases, as well as some pre-Lepkowski cases require a strict construction of the section. He does acknowledge, however, that cases in the Court of Claims are mixed on the issue of strict construction as it applies to an ad damnum clause.

More recent cases read Lepkowski as requiring a dismissal only where the defect in the Claim prevents the Defendant from investigating the allegations and assessing its liability (Hamilton v State of New York, 11 Misc 3d 650, 664; Legall v State of New York, 10 Misc 3d 800, 808). They go on to point out that in cases of medical malpractice or personal injuries, the ad damnum is not susceptible to an exact measure and as such, its exclusion does not prevent the Defendant from investigating its case.

In Kolnacki, the Fourth Department held that in a personal injury lawsuit, the failure of a Claim to include an ad damnum clause was not totally defective.

After reviewing the applicable case law, the Court finds that the information contained in the Claim was sufficient to permit the Defendant to perform an investigation and assess its liability. Accordingly, it grants the Claimant’s Motion to amend her Claim within 30 days from the filing of this decision, dismisses the Defendant’s Eighth Affirmative Defense; and the Court denies the Cross-Motion for Dismissal.


August 18, 2006
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims