New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2007-015-171, Claim No. 112064, Motion Nos. M-72673, CM-72760


Failure to plead the total sum claimed as damages required dismissal. Motion to amend claim to cure this jurisdiction was 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:
James Pettus, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michael W. Friedman, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 30, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves pro se to amend his claim to include a statement of the total sum claimed as damages and to permit proper verification of the claim. Defendant cross-moves to dismiss the claim on the ground, inter alia, that the failure to include the total sum claimed as damages is a jurisdictional defect requiring dismissal of the claim. Claimant alleges in his claim the following:
I am a non-violent inmate placed in the care, custody, control of "D.O.C." [State] who placed my person in a maximum security prison where petitioner was beaten, robbed, assaulted, extorted and sexually harassed, denying petitioner [reasonable safety] as a non-violent inmate who has no violence on his criminal rap sheet, nor institutional record, or personal history.

The claim does not state the total sum claimed as damages.

The Court of Appeals held in its recent decision in Kolnacki v State of New York

( ___NY3d ___, 2007 WL 844856, 2007 NY Slip Op 02436 [2007]) that a claim must specify the total sum claimed as damages or be subject to dismissal on jurisdictional grounds. The Kolnacki Court laid to rest the lingering uncertainty which remained in the wake of its decision in Lepkowski v State of New York (1 NY3d 201 [2003]) as to whether or not the failure to state the total sum claimed, standing alone, required dismissal. In so doing, the Court made clear that all of the requirements contained in Court of Claims Act § 11 (b) are "substantive conditions on the State's waiver of sovereign immunity" the failure to satisfy any one of which is a jurisdictional defect (id. at ___ , quoting Lepkowski v State of New York, supra, 1 NY3d at 207).[1] The claim in this case fails to assert the amount of monetary damages allegedly sustained as required by the jurisdictional pleading requirements of the Court of Claims Act § 11(b). As a result, the defendant's cross-motion to dismiss the claim is granted.

Claimant's motion to amend the claim to cure this defect is denied as defects that are jurisdictional in nature may not be cured by amendment (Manshul Constr. Corp. v State Ins. Fund, 118 AD2d 983 [1986]; Grande v State of New York, 160 Misc 2d 383 [1994]).

March 30, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated October 5, 2006;
  2. Notice of cross-motion dated December 29, 2006;
  3. Affirmation of Michael W. Friedman dated December 29, 2006 with exhibits;
  4. Opposition to notice of cross-motion sworn to January 4, 2007.

  1. [1]Section 11(b) of the Court of Claims Act requires that the claim state "the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed".