Notice of Motion, Affirmation of Peter J. Addonizio, Esq., Memorandum of Law,
with Exhibits 1,2,3
Affirmation in Opposition, with Exhibits 4
As set forth in the moving papers, claimant seeks damages for personal injuries
suffered by her in an automobile accident occurring on March 2, 2005. Claimant
alleges that on that date, her vehicle was struck from behind by a motor vehicle
owned by the State University of New York Health Science Center, and operated by
one of its employees.
Following this accident, claimant apparently served a “Notice of
Intention to File Claim” upon the Attorney General on or about May 11,
1005, by certified mail, return receipt requested. Claimant then served a claim
upon the Attorney General on or about December 19, 2005, and filed a claim with
the Court of Claims on December 19, 2005. This claim was assigned Claim
No. 111746 by the Clerk of the Court of Claims. It appears that both sides
have participated in discovery proceedings with respect to Claim No. 111746,
which is still pending in this Court.
Notwithstanding the service and filing of Claim No. 111746, claimant now seeks
permission to serve and file a late claim based upon the same facts and
circumstances. 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 previously filed claim 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-73370 is hereby DENIED as moot.