New York State Court of Claims

New York State Court of Claims

LAYBOULT v. THE STATE OF NEW YORK, #2007-009-033, Claim No. 112063, Motion No. M-73502


Synopsis


Claimant’s motion seeking permission to amend his claim, or for permission to serve and file a late claim, was denied as moot, based upon the recent amendment to Court of Claims Act § 11(b) (L 2007, ch 606), which affected the Kolnacki decision (8 NY 3d 277).

Case Information

UID:
2007-009-033
Claimant(s):
ALLAN LAYBOULT
1 1.
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Claimant short name:
LAYBOULT
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112063
Motion number(s):
M-73502
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
DELDUCHETTO & POTTER
BY: Ernest A. DelDuchetto, Esq.,Of Counsel.
Defendant’s attorney:
HON. ANDREW M. CUOMO
ATTORNEY GENERAL
(No Appearance).
Third-party defendant’s attorney:

Signature date:
November 26, 2007
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has brought this unopposed motion seeking permission to amend his claim, or, in the alternative, for permission to serve and file a late claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit of Ernest A. DelDuchetto, Esq., with Exhibits 1,2

In this claim, claimant seeks damages for personal injuries based upon allegations of medical malpractice and negligence occurring on December 13, 2005, when claimant was hospitalized at University Hospital, a hospital owned and operated by the State.

It is readily apparent to the Court that this motion has been brought in response to the recent Court of Appeals decision of Kolnacki v State of New York, (8 NY3d 277), in which that Court held that the failure of a claimant to include the total sum of monetary damages in the claim, as required by Court of Claims Act § 11(b), constituted a jurisdictional defect requiring dismissal of the claim.

While this motion was pending, however, § 11(b) of the Court of Claims Act was amended (L 2007, ch 606), and this section now provides that a sum certain is no longer required to be stated in a claim for personal injury, medical, dental, or podiatric malpractice, or in wrongful death suits. As provided by this legislation, the amendment to § 11(b) applies to claims pending in the Court of Claims on its effective date (August 15, 2007).

Accordingly, since the sole purpose of this motion was to address the Kolnacki holding, based upon the recent amendment of Court of Claims Act § 11(b) the claim herein is not jurisdictionally defective, notwithstanding the absence of an ad damnum clause, and claimant’s motion has been rendered moot.

Accordingly, for the reasons set forth herein, it is

ORDERED, that Motion No. M-73502 is hereby DENIED as moot.


November 26, 2007
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims