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
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2476, and Cepeda v State of New York, (unpublished opinion, Claim No.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
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
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.