New York State Court of Claims

New York State Court of Claims

DENHAM v. THE STATE OF NEW YORK, #2007-009-034, Claim No. NONE, Motion No. M-73370


Synopsis


Claimant’s motion for permission to serve and file a late claim was denied as moot due to the legislative amendment to § 11(b)of the Court of Claims Act (in response to the Kolnacki decision).

Case Information

UID:
2007-009-034
Claimant(s):
BARBARA B. DENHAM
Claimant short name:
DENHAM
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-73370
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
ALEXANDER & CATALANO, LLC
BY: Peter J. Addonizio, Esq.,Of Counsel.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Edward F. McArdle, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
November 29, 2007
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has brought this motion seeking permission to serve and file a late claim pursuant to Court of Claims Act § 10(6).

The following papers were considered by the Court in connection with this motion:
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.


November 29, 2007
Syracuse, New York

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