In motion no. M-72358, claimants move for an order dismissing defendant’s
seventh, eighth and ninth affirmative defenses, i.e., paragraphs ten
through twelve of defendant’s answer, as well as permitting them to serve
and file an amended claim. In cross-motion no. CM-72520, defendant moves for
summary judgment dismissing the claim, on the grounds asserted in the
aforementioned affirmative defenses. The claim arises from a December 26, 2004
automobile accident on the Grand Central Parkway in Queens, which allegedly
occurred because of a recurrent ice and water accumulation. Moussa Soleimani
died as a result of the injuries sustained in such accident. The affirmative
defenses at issue are the following: (1) that the claim fails to allege a total
sum claimed as required by §11 of the Court of Claims Act (the
“Act”); (2) that the claim fails to include a verification; and (3)
that it “fails to state a cause of action” against the State.
Section 11(b) of the Act requires that a claim “shall 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.” In
Kolnacki v State of New York, 2007 WL844856 (March 22, 2007), the
Court of Appeals recently held that the failure to include a total sum claimed
is a jurisdictional defect requiring dismissal. A jurisdictional defect may not
be cured by amendment. See, e.g., Grande v State of New York, 160 Misc
2d 383, 609 NYS2d 512 (Ct Cl 1994). Accordingly, the remaining issues raised by
the parties in connection with motion no. M-72358 and cross-motion no. CM-72520
need not be reached.
Claimants have also moved for permission to file a late claim under §10.6
of the Act (motion no. M-72678), but it is unnecessary to decide same. Section
10.2 of the Act requires that as to a cause of action for wrongful death, where
a notice of intention is served within 90 days of the appointment of an
administrator, then a claim must be served and filed within two years after the
death of the decedent. Section 10.3 provides that as to a claim for personal
injury caused by negligence (e.g. for conscious pain and suffering), where a
notice of intention is served within 90 days of accrual, then a claim must be
served and filed within two years after accrual.
On March 25, 2005, i.e., the 89th day following the accident, and 22
days after the appointment of an administrator for the estate, claimants served
defendant with a notice of intention. See exhibit 2 to claimants’ notice
of motion no. M-72678. Such notice of intention was thus timely served for the
purposes of §10 of the Act, was verified and contained a total sum claimed
(although a sum claimed is not required in a notice of intention. See
Kolnacki, supra; §11(b) of the Act).
Claimants then had until December 26, 2006, i.e., two years after December 26,
2004, to serve and file a claim. Claim no. 112108, which, as set forth above,
must be dismissed because it lacks a total sum claimed, was served prior to the
December 26, 2006 deadline. In addition, prior to such deadline, on December
20, 2006, claimants filed claim no. 113124, which was verified and contains a
total sum claimed. It is unclear when defendant was served with such claim,
although the affidavit of service indicates that it was mailed by regular mail
on December 15, 2006, i.e., 11 days prior to the December 26, 2006 deadline. In
any event, defendant fails to allege in its answer or a pre-answer motion that
the claim was untimely served for the purposes of §10 of the Act or that
the manner of service was improper for the purposes of subdivision a of §11
of the Act. Because defendant failed to raise these defenses in its answer or a
pre-answer motion, they have been waived. See §11(c) of the Act.
Accordingly, claim no. 113124 is a viable claim and motion no. M-72678 for
permission to file a late claim need not be reached.
Accordingly, having reviewed the submissions
IT IS ORDERED that motion no. M-72358 be denied, that cross-motion no. CM-72520
be granted and claim no. 112108 be dismissed, and that motion no. M-72678 be
denied as moot.