New York State Court of Claims

New York State Court of Claims

BENN v. THE STATE OF NEW YORK, #2007-009-036, Claim No. 113203, Motion Nos. M-73449, CM-73567


Claimant’s motion to amend her claim to add the total sum of monetary damages claimed was denied as moot, due to recent legislation (L 2007, ch 606), and defendant’s motion to dismiss was also denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant’s attorney:
BY: David E. Zukher, Esq.,Of Counsel.
Defendant’s attorney:
Attorney General
BY: Roger B. Williams, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
December 5, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought a motion (M-73449) seeking permission to amend her claim. Defendant has responded with the cross-motion (CM-73567) seeking an order dismissing the claim.

The following papers were considered by the Court in connection with these motions:
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, 2006.

Following this accident, a claim[1] was served 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 jurisdiction.

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 further

ORDERED, that Cross-Motion No. CM-73567 is hereby DENIED in its entirety.

December 5, 2007
Syracuse, New York

Judge of the Court of Claims

[1]. The claim is titled “Notice of Claim”.