New York State Court of Claims

New York State Court of Claims

BAILEY v. THE STATE OF NEW YORK, #2007-009-035, Claim No. 111521, Motion No. M-73776


Synopsis


Defendant’s motion to dismiss the claim due to claimants’ failure to allege a sum certain in the claim was denied, based upon the recent amendment to § 11(b) of the Court of Claims Act, made in response to the Kolnacki decision.

Case Information

UID:
2007-009-035
Claimant(s):
KRISTINA L. BAILEY and EDWARD S. BAILEY
Claimant short name:
BAILEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111521
Motion number(s):
M-73776
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
KRISTINA BAILEY, Pro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Maureen A. MacPherson, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
December 5, 2007
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this motion seeking an order dismissing the claim.

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


December 5, 2007
Syracuse, New York

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