Reply of Edward F. McArdle, Esq., Assistant Attorney General 5
In this claim, claimants seek damages for loss of business, income, and
customers, as well as damages for business interruption, allegedly caused by the
State through its Department of Transportation when it undertook major road
construction in the vicinity of Abbott’s Big M between March 2006 and
October 2006. The claim is based upon allegations of negligence and
carelessness in that the State failed to provide an adequate means of ingress
and egress for customers, suppliers or employees of Abbott’s Big M during
normal business hours, and that the defendant also obstructed the existing means
of ingress and egress.
In its motion (M-73846), defendant seeks dismissal of the claim based upon
untimely service, as well as contending that the claim is jurisdictionally
In their claim, claimants allege that the road construction that interfered
with their business occurred between the months of March 2006 through October
2006. Based upon the affirmation of defendant’s attorney, the claim was
personally served upon the Attorney General on February 16, 2007 (see Exhibit A
to Items 1,2), and was filed with the Clerk of the Court of Claims on
January 24, 2007. There is no indication that a notice of intention
to file a claim was served upon the Attorney General at any point prior to the
service of the claim on February 16, 2007.
A claim alleging acts of negligence against the State must be served upon the
Attorney General and filed with the Clerk of the Court of Claims within 90 days
of accrual, unless a notice of intention to file a claim is served upon the
Attorney General within such 90 days. If a notice of intention is properly
served upon the Attorney General, the claim must then be served and filed within
two years from the date of accrual (Court of Claims Act § 10). These
requirements are jurisdictional prerequisites to the institution and maintenance
of a claim, and must therefore be strictly construed (Phillips v State of New
York, 237 AD2d 590; Byrne v State of New York, 104 AD2d 782, lv
denied 64 NY2d 607).
As stated above, there has been no evidence submitted to establish that a
notice of intention was timely and properly served upon the Attorney General.
Accordingly, in order to be timely, the claim had to be served upon the Attorney
General and filed with the Clerk of the Court of Claims within 90 days of
accrual. Even if the Court gives claimants every benefit of doubt, the latest
possible date of accrual for this claim, according to the allegations set forth
therein, is October 31, 2006. Since service of the claim did not occur
within 90 days of this date, the claim was not served in a timely manner and is
therefore subject to dismissal.
Claimants apparently do not dispute the fact that this claim was not served
until February 16, 2007, since in his affirmation in support of the cross-motion
herein, claimant’s attorney characterizes this claim as one for
intentional and unreasonable interference with the use and enjoyment of land.
Claimants therefore contend that the time for service and filing of this claim
should be determined not by § 10(3), but rather by Court of Claims Act
§ 10(4), which provides claimants with six months to file and serve a claim
or serve a notice of intention for any action not otherwise specifically
provided for in § 10.
Despite their attorney’s characterization of this claim as an
“intentional” tort and one based upon “unreasonable
interference with the use and enjoyment of land”, there are no such
allegations set forth in their claim, nor can this Court impute such a cause of
action from the allegations set forth therein. The claim specifically and
clearly states that the damages allegedly sustained by claimants were caused
“wholly and solely by the negligence and carelessness” of the
Therefore, based upon its review of the allegations set forth therein, the
Court finds that this claim is based upon allegations of negligence and is
therefore subject to the filing and service requirements set forth in Court of
Claims Act § 10(3). As a result, and as set forth above, the Court finds
that this claim was not timely served and is subject to dismissal.
Additionally, defendant contends that the claim herein is jurisdictionally
defective, due to the failure to set forth a “total sum claimed” as
required by Court of Claims Act § 11(b). It is readily apparent to the
Court that this aspect of defendant’s motion is based upon 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.
The Court notes that while this motion and claimant’s cross-motion were
pending, § 11(b) of the Court of Claims Act was amended (L 2007, ch 606).
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. This amendment applies to claims pending in the Court of
Claims on its effective date (August 15, 2007).
Significantly, however, this amendment to § 11(b) did not eliminate the
requirement that a sum certain be stated for all claims brought in the
Court of Claims, but only for these specific types of claims set forth above.
In other words, a claim other than one for personal injury, medical, dental or
podiatric malpractice, or wrongful death must still include the total sum of
monetary damages in the claim. Strict compliance with the substantive
conditions set forth in Court of Claims Act § 11(b) is required, and the
failure to satisfy any one of these requirements constitutes a jurisdictional
defect (Lepkowski v State of New York, 1 NY3d 201; Kolnacki v State of
New York, supra). Therefore, the failure to include the total sum of
monetary damages in this particular claim, which is not based on allegations
affected by the recent amendment discussed herein (L 2007, ch 606), constitutes
a jurisdictional defect requiring dismissal of the claim.
In an apparent attempt to comply with the Kolnacki holding, claimants
filed an amended claim on July 12, 2007, in which this amended claim set forth
an amount claimed as damages. This appears to be the only change from the
original claim. It is well settled, however, that a defective claim cannot be
cured by amendment if that defect is deemed to be jurisdictional (Manshul
Constr. Corp. v State Ins. Fund, 118 AD2d 983; Ferrer v State of New
York, 172 Misc 2d 1; Grande v State of New York, 160 Misc 2d 383).
Accordingly, the Court must therefore find that claimants failed in their
attempt to cure this jurisdictional defect when they served and filed their
In their cross-motion, claimants’ attorney, in a novel approach, has
requested that this Court deem its original claim a notice of intention to file
a claim, and to then treat the amended claim as the actual claim, in order to
cure any jurisdictional defects.
Claimants not only clearly designated their original claim as a
“claim” and not a “notice of intention to file a claim”
(and similarly labeled their attempt to amend this claim as an “amended
claim”), they also both served and filed this claim, whereas a notice of
intention no longer is filed with the Clerk of the Court of Claims (Court of
Claims Act § 10; L 1995, ch 466).
The Court further notes that even if it was inclined to deem this claim a
notice of intention, it would still be subject to the same defect in timely
service as was found by this Court to exist with respect to the original claim.
Accordingly, based upon all of the foregoing, the Court finds and concludes
that this claim was not timely served, and that it is also jurisdictionally
defective due to the failure to comply with the strict pleading requirements of
Court of Claims Act § 11(b). For both of these reasons, this claim must be
It does appear to this Court that claimants may have available to them the
possibility of late claim relief pursuant to Court of Claims Act § 10(6).
Claimants did not seek this relief in their cross-motion, and therefore such an
application is not properly before the Court at this time.
Therefore, it is
ORDERED, that Motion No. M-73846 is hereby GRANTED; and it is further
ORDERED, that Cross-Motion No. CM-73929 is hereby DENIED; and it is
ORDERED, that Claim No. 113248 is hereby DISMISSED.