Notice of Motion, Affirmation, with Exhibits (M-73601) 1,2
Notice of Cross-Motion, Affirmation, with Exhibits (CM-73684) 3,4
In his claim, claimant seeks damages for an injury to his left arm which
allegedly occurred on January 5, 2007, when claimant, an inmate under the
care and custody of the New York State Department of Correctional Services, was
performing duties in a work detail while he was housed at the Willard Drug
Treatment Center. Claimant apparently also seeks damages for medical negligence
and/or malpractice for the medical treatment received by him for this injury.
In its motion to dismiss, defendant seeks dismissal of the claim based upon
four separate grounds, to wit: (1) insufficiency of the notice of intention; (2)
improper service of the claim; (3) failure to include the “total sum
claimed” in the claim; and (4) failure to provide a certificate of merit
with regard to the medical malpractice cause of action alleged in the claim.
The Court will separately address each of these issues herein.
1. INSUFFICIENCY OF THE NOTICE OF INTENTION
Claimant, at the time proceeding pro se, served a notice of intention to
file a claim upon the Attorney General on April 4, 2007. Service was presumably
accomplished by certified mail, return receipt requested, as required by statute
(Court of Claims Act § 11[a]). Defendant does not object to either the
timeliness or manner of service of this notice of intention, but contends that
the notice of intention did not accurately set forth the location where the
potential claim accrued.
There is no dispute that claimant, in his notice of intention, stated that his
injury occurred in the County of Willard, New York, and no such county exists by
that name in this State. Claimant presumably was referring to the Willard Drug
Treatment Center, where he was then incarcerated, which is located in Seneca
The purpose of a notice of intention, which is not considered a pleading, is
two-fold: it places the State on notice of a potential claim, thereby providing
the State with information to conduct a meaningful investigation into the
circumstances of that potential claim, and it also extends the time in which a
claimant may interpose a claim against the State. A notice of intention need
not satisfy the specific pleading requirements of a claim, as long as it is
sufficient to provide the State with notice of the general nature of the claim
(Hood v State of New York, 113 Misc 404) and it should not be scrutinized
as strictly as a pleading (Schwartzberg v State of New York, 121 Misc 2d
In this particular matter, the State, upon receipt of claimant’s notice
of intention, was well aware that claimant was an inmate incarcerated under the
care and custody of the Department of Correctional Services. Despite
claimant’s inaccurate reference to the “County of Willard” in
his notice of intention, the Court does not believe that the State was hindered
in any way whatsoever from conducting an investigation based upon the other
information contained in that notice. The Court therefore finds that claimant
sufficiently described the location where his injury occurred and that the
notice of intention was sufficient to place the State on proper notice of a
MANNER OF SERVICE OF THE CLAIM
Following service of his notice of intention, claimant apparently obtained an
attorney who prepared the within claim. This claim was served upon the Attorney
General on May 30, 2007, and was filed with the Clerk of the Court of Claims on
May 29, 2007. The claim was admittedly served upon the Attorney General by
Federal Express, and not by certified mail, return receipt requested.
Pursuant to Court of Claims Act § 11(a), a claim or a notice of intention
must be served upon the Attorney General either personally or by certified mail,
return receipt requested. Service by Federal Express delivery does not comply
with the specific requirements of this statute, and therefore is insufficient to
acquire jurisdiction (LaFrance v State of New York, 147 AD2d 985; lv
denied 74 NY2d 604).
According to his affirmation set forth in the cross-motion papers,
claimant’s attorney apparently realized that the claim had not been
properly served, and affirms that the claim has now been re-served upon the
Attorney General by certified mail, return receipt requested, on
June 18, 2007 (see Exhibit 1 to Items 3,4).
Since this Court has determined herein that claimant has timely and properly
served a notice of intention pursuant to Court of Claims Act § 10(3),
claimant then had two years from the date of accrual of his cause of action to
properly serve and file his claim. From the papers submitted with his
cross-motion, it now appears that claimant has properly and timely served the
Attorney General with this claim.
FAILURE TO INCLUDE A TOTAL SUM CLAIMED
It is apparent 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
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 claim herein is not jurisdictionally defective, notwithstanding the
absence of an ad damnum clause.
FAILURE TO PROVIDE A CERTIFICATE OF MERIT
Defendant also contends that claimant failed to provide a certificate of merit
with this claim, as required by CPLR § 3012-a. Claimant’s attorney,
in his cross-motion papers, has now included such a certificate of merit.
Defendant is correct in noting that claimant initially failed to comply with
CPLR § 3012-a, as there is no indication that a certificate of merit was
served and filed with his claim with respect to the medical malpractice cause of
action. It has been held, however, that the initial failure to serve and file
such a certificate does not equate to a default in pleading, and therefore a
dismissal of the action should not immediately result from such failure (Dye
v Leve, 181 AD2d 89; Kolb v Strogh, 158 AD2d 15). Since
claimant’s attorney has now served the required certificate of merit with
his cross-motion papers, defendant’s argument on this point has been
Accordingly, after consideration of each contention raised by defendant, the
Court finds and determines that dismissal of this claim is not warranted. As a
result, claimant’s cross-motion seeking permission to amend his claim (as
well as for permission to serve and file a certificate of merit) has been
In light of the foregoing, it is therefore
ORDERED, that Motion No. M-73601 is hereby DENIED; and it is further
ORDERED, that Cross-Motion No. CM-73684 is also DENIED as moot.