New York State Court of Claims

New York State Court of Claims

HEYWARD v. THE STATE OF NEW YORK, #2007-009-037, Claim No. 112913, Motion Nos. M-73683, CM-73853


Synopsis


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

UID:
2007-009-037
Claimant(s):
MARGARET HEYWARD, Individually, and as the Parent and Natural Guardian of VANESSA HEYWARD, CLARISSA HEYWARD and JACOB HEYWARD
Claimant short name:
HEYWARD
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112913
Motion number(s):
M-73683
Cross-motion number(s):
CM-73853
Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
TREVETT, CRISTO, SALZER & ANDOLINA, P.C.
BY: Louis B. Cristo, Esq.,Of Counsel.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Ed J. Thompson, 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

Claimant has brought a motion (M-73683) seeking permission to amend her claim. Defendant has responded with the cross-motion (CM-73853) seeking an order dismissing the claim.

The following papers were considered by the Court in connection with these motions:
Notice of Motion (M-73683), Affidavit of Louis B. Cristo, Esq., with Exhibits 1,2


Memorandum of Law in Support 3

Cross-Motion (CM-73853), Affirmation of Ed J. Thompson, Esq., Assistant Attorney General 4,5


Memorandum of Law in Support of Cross-Motion, with Exhibit 6

In this claim, claimant Margaret Heyward alleges that she and her three infant children sustained injuries after being exposed to water contaminated with cryptosporidium at the Spraypark located at Seneca Lake State Park in Seneca County on August 19, 2005. In the filed claim, however, claimant did not set forth the specific amount of damages suffered, and by this motion seeks permission to amend her claim solely to include an ad damnum clause. Additionally, defendant’s motion seeking dismissal of the claim is based solely on claimant’s failure to include this statement of damages in her claim.

It is readily apparent to the Court that the motion and cross-motion have both 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 and 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, 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 both claimant’s motion and defendant’s cross-motion have therefore been rendered moot. Accordingly, for the reasons set forth herein, it is

ORDERED, that Motion No. M-73683 and Cross-Motion No. CM-73853 are both hereby DENIED as moot.


December 5, 2007
Syracuse, New York

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