This is a claim for injuries to Christopher Stewart (hereinafter
“claimant”) for the alleged medical malpractice of defendant’s
employees at the State University of New York at Stony Brook, Stony Brook, New
York. The alleged malpractice occurred during a continuous course of treatment
beginning September 17, 2005 and continuing through December 2005.
On January 11, 2006, claimant served and filed a claim. Defendant served its
answer on February 14, 2006. On April 27, 2006, a preliminary conference was
held between the parties and with the Court. At the conference,
defendant’s jurisdictional defenses were discussed. One of the defenses
discussed was claimant’s failure to include an ad damnum clause in
the claim. Claimant indicated that it would file a motion for leave to serve a
Claimant has indeed made a motion for permission to file a late claim pursuant
to Court of Claims Act §10(6)
cross-moves to dismiss the underlying claim
In opposition to the cross-motion, claimant argues that the failure to include
an ad damnum clause is not jurisdictionally defective. Claimant cites to
several cases of judges of this Court. Claimant ignores the other judges of
this Court who have ruled that the failure to include the ad damnum
clause is a jurisdictional defect, including this Court’s decision in
Fardella v State of New York, Claim No. 108433, M-67729, UID No.
The requirements of the Court of Claims Act are jurisdictional in nature and
must be strictly construed (Lurie v State of New York, 73 AD2d 1006,
aff’d 52 NY2d 849). The purpose of these requirements is to give
the State prompt notice of an occurrence and an opportunity to investigate the
facts and prepare a defense. Lepkowski v State of New York, 1 NY3d 201,
207, notes that the Court of Claims Act "places five specific substantive
conditions upon the State's waiver of sovereign immunity by requiring the claim
to specify (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 of Appeals in
Lepkowski contrasts CPLR 3017(c) which prohibits the pleading of a
specific amount in personal injury and wrongful death actions.
Lepkowski, which concerned unpaid overtime of state employees, dismissed
the claims for, among other things, failing to plead the amount claimed as to
each of the claimants.
Therefore, the Court finds that the failure by claimant to include the ad
damnum clause is jurisdictionally defective. The Court grants
defendant’s cross-motion to dismiss the claim and Claim No. 111825 is
dismissed and the Clerk of the Court is directed to close the file.
In determining a motion seeking permission to file a late claim, the Court must
consider the following six enumerated factors listed in Court of Claims Act
§10(6): (1) whether the delay in filing was excusable; (2) whether the
State had notice of the essential facts constituting the claim; (3) whether the
State had an opportunity to investigate the circumstances underlying the claim;
(4) whether the failure to file and serve a timely claim or serve a timely
notice of intention resulted in substantial prejudice to the State; (5) whether
the movant has another available remedy; and (6) whether the claim appears to be
meritorious. The Court in the exercise of its discretion balances these
factors, and, as a general rule, the presence or absence of any one factor is
not dispositive (Bay Terrace Coop. Section IV v New York State
Employees’ Retirement System Policemen’s and Firemen’s
Retirement System, 55 NY2d 979).
The Court has reviewed the parties’ papers in support and in opposition
to the motion.
Based on the foregoing, the Court concludes that the statutory factors favor
movant’s application and, therefore, grants permission to file a late
claim (Jomarron v State of New York, 23 AD3d 527). Movant is directed to
serve and file the proposed claim within forty-five (45) days of the filing of
this Decision and Order in accordance with §§10, 11 and 11-a of the
Court of Claims Act.