New York State Court of Claims

New York State Court of Claims

SOLEIMANI v. THE STATE OF NEW YORK, #2007-016-011, Claim No. 112108, Motion Nos. M-72358, M-72678, CM-72520


Synopsis


Claim was dismissed for failure to state a total sum claimed. Cross-motion for permission to file a late claim was denied as moot.

Case Information

UID:
2007-016-011
Claimant(s):
MARGALIT SOLEIMANI as Administratrix of the estate of MOUSSA SOLEIMANI, MAHVASH SOLEIMANI and MASHALLA SOLEIMANI
Claimant short name:
SOLEIMANI
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112108
Motion number(s):
M-72358, M-72678
Cross-motion number(s):
CM-72520
Judge:
Alan C. Marin
Claimant’s attorney:
Omrani & Taub, P.C.By: Steven M. Zorowitz, Esq. and San Razzano, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Gail Pierce-Siponen, Esq., AAG and Ellen Matowik Russell, Esq., AAG
Third-party defendant’s attorney:

Signature date:
March 30, 2007
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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[1], 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.

March 30, 2007
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]The following were reviewed: claimants’ notice of motion no. M-72358 with “Motion to File Amended Claim and exhibit ; defendant’s “Notice of Cross-motion [no. CM-72520] and Opposition to [Claimants’] Motion” with affirmation in support and exhibits A and B: claimants’ “Affirmation in Opposition to Cross Motion and in Reply to [Claimants’] Motion to File Amended Claim”; claimants’ “Notice of Motion [no. M-72678] to File Claim Pursuant to CCA §10-6" with affirmation in support and exhibits 1 through 5; and defendant’s affirmation in opposition to motion no. M-72678 with exhibit A.