Notice of Motion (M-73449), Affirmation, with Exhibits 1,2
Cross-Notice of Motion (CM-73567), Affirmation, with Exhibit 3,4
Affirmation (in opposition to Cross-Motion) (CM-73567), with Exhibits 5
In her claim, claimant seeks damages for personal injuries suffered by her when
she and another pedestrian were struck by a motor vehicle at an intersection
controlled by a traffic signal in the City of Cortland, New York on November 11,
Following this accident, a claim
upon the Attorney General on January 29, 2007. The claim was filed with
the Clerk of the Court of Claims on January 12, 2007. In the filed claim,
however, claimant failed to include the total sum of monetary damages sought by
her. As set forth in the moving papers to claimant’s motion herein,
claimant seeks permission to amend her claim solely to add a monetary request
for damages to the original claim.
It is readily apparent to the Court that claimant’s 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 claimant’s motion (and defendant’s cross-motion) were
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 claimant’s 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
due to the absence of an ad damnum clause, and claimant’s motion
has been rendered moot.
In its cross-motion, defendant seeks dismissal of the claim, contending that
the claim is jurisdictionally defective in several aspects.
Based upon a review of the papers submitted by defendant in support of its
cross-motion, it appears to the Court that the defendant has relied primarily
upon the fact that claimant failed to set forth the total sum of monetary
damages in her claim, and that pursuant to the Kolnacki holding, the
Court lacks subject matter jurisdiction of this claim. Obviously, as previously
discussed herein, the recent amendment to Court of Claims Act § 11(b) has
rendered this aspect of defendant’s motion moot.
Defendant also contends that claimant has failed to set forth in her claim a
“schedule showing in detail each item of damage claimed and the amount of
each such item” as required by § 206.6(b) of the Uniform Rules for
the Court of Claims. Additionally, defendant contends that claimant has failed
to separately state and number the paragraphs and allegations in her claim as
required by CPLR Rule 3014. Defendant acknowledges, however, that this omission
does not constitute a jurisdictional defect.
Although § 206.6 of the Uniform Rules sets forth additional requirements
for a claim or notice of intention to file a claim, in addition to those
requirements prescribed by § 11 of the Court of Claims Act, it is those
requirements set forth in § 11 that must specifically be included in a
claim to provide this Court with subject matter jurisdiction (Lepkowski v
State of New York, 1 NY3d 201; Kolnacki v State of New York, supra).
Therefore, as long as a claimant has satisfied the jurisdictional prerequisites
set forth in § 11, the failure to comply with additional technical pleading
requirements contained in the Court’s Rules does not divest this Court of
Finally, defendant also contends that claimant has not provided in her claim
“any reasonable nexus between the few allegations of negligence on the
part of the State and the collision between the operator of the vehicle which
struck the Claimant, or avoidance of the same.” In her claim, however,
claimant has adequately and clearly set forth her allegations of negligence
against the State. Whether she will be able to prove these allegations, and
further, establish that such negligent conduct was a proximate cause of the
accident which caused her injuries, are issues which are obviously not properly
before the Court at this time.
Accordingly, for the reasons set forth herein, it is
ORDERED, that Motion No. M-73449 is hereby DENIED as moot; and it is
ORDERED, that Cross-Motion No. CM-73567 is hereby DENIED in its entirety.