Notice of Motion to Dismiss, Affirmation, with Exhibits 1,2
Memorandum of Law, with Exhibits 3
Affidavit (in Opposition) of Kristina Bailey, with Exhibits 4
In this claim, claimants seek damages for personal injuries allegedly suffered
by claimant Kristina Bailey based upon allegations of medical malpractice and
negligence, occurring on April 5, 2004, when she underwent surgery at
University Hospital, a hospital owned and operated by the State. On that date,
claimants allege that a portion of a surgical needle tip was left inside the
body of claimant Kristina Bailey during the procedure. The claim of Edward
Bailey is derivative in nature.
In this motion to dismiss, defendant contends that the claim is
jurisdictionally defective, and therefore subject to dismissal, since the claim
fails to include a statement of damages. It is therefore apparent to this 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 this motion for dismissal was based solely upon
claimants’ failure to include the total sum of monetary damages in the
claim, as required by 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 defendant’s motion has been rendered moot.
Accordingly, for the reasons set forth herein, it is
ORDERED, that Motion No. M-73776 is hereby DENIED as moot.