New York State Court of Claims

New York State Court of Claims

SINCLAIR v. THE STATE OF NEW YORK, #2007-028-544, Claim No. 110404, Motion No. M-72756


Motion for an extension of time (CPLR 2004) would be granted where, as a result of law office failure, Claimant served but did not file an amended Claim within the time established by the Court. A recent decision of the Court of Appeals, Kolnacki v State of New York (8 NY3d 277 [2007]), arguably invalidates the basis of the original ruling on the motion to amend, however, and Claimant is advised to pursue the option of moving for permission to file a late claim.

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:
ROBERT G. GOODMAN, P.C.BY: John J. Appell, Esq.
Defendant’s attorney:
BY: Lea LaFerlita, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 8, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant’s motion for an extension of time to comply with a prior order of the Court:

1. Notice of Motion and Supporting Affrmation of John J. Appell, Esq., with annexed Exhibits;

2. Affirmation in Opposition of Lea LaFerlita, AAG, with annexed Exhibit; and

3. Reply Affirmation of John J. Appell, Esq.

Filed papers: Claim; Answer; Answer to Unfiled Amended Claim; Decision and Order, Motion No. M-70400, Cross Motion CM-70550, Sept. 18, 2006, Waldon, J.

This action arose on November 24, 2004 at Kings County Surrogate’s Court where, it is alleged, Claimant was assaulted by two court officers. The original Claim, filed on January 25, 2005, set forth causes of action for negligent restraint (Claim, ¶ 12), intentional restraint (id. ¶13); excessive use of force (id. ¶ 14); and negligent hiring and retention (id. ¶ 15). The Claim did not include an ad damnum or statement of the “total sum claimed” (Court of Claims Act §11[b]). Defendant moved to dismiss the Claim on the ground that that omission was a jurisdictional defect, and in response Claimant cross-moved for permission to amend the Claim to add the missing information.

Former Judge Alton R. Waldon, Jr. held that the omission of a “total sum claimed” was not a fatal defect but, rather, one that can be cured by amendment, relying on the then-controlling decisions in Morris v State of New York (27 AD3d 282 [1st Dept 2006]) and Kolnacki v State of New York (28 AD3d 1176 [4th Dept 2006]). Consequently, he denied Defendant’s motion to dismiss and granted Claimant’s motion to amend. Judge Waldon directed Claimant to “serve and file the amended claim within thirty days of the date this Decision and Order is filed.”

The Decision and Order was filed on September 18, 2006, which meant that the amended Claim had to be filed and served on or before October 18, 2006. Claimant complied in part by serving the amended Claim on the Office of the Attorney General on September 27, 2006, but it was not filed with the Court, due to what Claimant’s counsel describes as “clerical error by our office staff” (Appell Affirmation, ¶10) When Claimant’s counsel received the State’s Answer to the Amended Claim, containing an affirmative defense asserting that the amended Claim had not been filed in accordance with Judge Waldon’s direction, he immediately took steps to rectify the error. He first asked Defendant to stipulate to permit the Claim to be filed and, when that request was refused, commenced the instant motion. Acknowledging that a copy of the amended Claim was timely served (LaFerlita Affirmation, ¶ 9), Defendant has construed this motion as one brought pursuant to CPLR 2004 for an extension of time and opposes the requested relief on the grounds that Claimant has failed to provide a reasonable excuse for the delay in filing the amended Claim and has failed to submit an affidavit of merit establishing the presence of a viable cause of action.

CPLR 2004 provides as follows:
Except where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed.
The Court of Appeals has stated that, except when an extension is sought in connection with default in filing an initial pleading, a court is to consider such factors as length of the delay, reason or excuse for the delay, and prejudice to the opponent in deciding whether to grant extensions (Tewari v Tsoutsouras, 75 NY2d 1, 12 [1989]). Even where, as here, failure to comply with a court-ordered deadline is attributable to law office failure, an extension of time may be granted where there was no purposeful delay and the opposing party will not be prejudiced (Brusco v Davis-Klages, 302 AD2d 674 [3d Dept 2003]; Magie v Fremon, 162 AD2d 857 [3d Dept 1990]). The statute does not require that an application for an extension of time be accompanied by an affidavit of merit.

As a result of the foregoing discussion, this Court would, in the normal course, have granted Claimant’s motion and allowed the amended Claim to be filed, with no further discussion. The delay was very brief and it is evident that Claimant’s counsel did not wilfully refuse to comply with Judge Waldon’s direction. An intervening Court of Appeals decision, however, brings into question the continued validity of the previous ruling and, consequently, the viability of this action even if the amended Claim is filed.

Prior to the Court of Appeals’ decision in Kolnacki v State of New York (8 NY3d 277 [2007]), the First, Second and Fourth Departments had considered the question of whether a claimant’s failure to state a “total sum claimed” in a Claim filed with the Court of Claims was a jurisdictional defect that could not be cured by amendment. They concluded that it was not (Beckley-Kamara v State of New York, 35 AD3d 774 [2d Dept 2006]; Morris v State of New York (27 AD3d 282 [1st Dept 2006]; Kolnacki v State of New York (28 AD3d 1176 [4th Dept 2006]).[1] Thus, at the time Claimant moved to amend her Claim to include the missing information, Judge Waldon was obligated to rule as he did, following appellate authority to permit amendment of the Claim and deny the State’s motion to dismiss (Herbert v State of New York, 13 Misc 3d 1237[A] [Ct Cl 2006]).

In its decision reversing the appellate ruling in Kolnacki, the Court of Appeals held unambiguously that all of the requirements set forth in section 11(b) are “substantive conditions on the State’s waiver of sovereign immunity” and that failure to satisfy any of the conditions is a jurisdictional defect (8 NY3d at 280, quoting Lepkowski v State of New York, 1 NY3d 201, 207 [2003]). The Court observed that this is not a new principle, for it has long been held that nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary (8 NY3d at 281).

Thus, while this Court would have no difficulty granting Claimant’s extension of time to file her amended claim, there is serious question as to whether such permission would benefit her. Because the original claim lacked information that is now held to be a jurisdictional requirement, a defect that cannot be cured by amendment, it is likely that Defendant will move to dismiss it on the ground that the original claim was defective and the amendment of no effect, and/or the issue may well be raised by the Court itself, in light of its power to sua sponte dismiss actions that fall outside its jurisdiction (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3211, C3211:11; Concourse Nursing Home v Chasin, 259 AD2d 302 [1st Dept 1999]).

Because neither party has had an opportunity to address and argue the implications that the recent Kolnacki decision may have for this specific action, the Court will grant Claimant the extension of time in which to file her amended claim. Claim No. 110404 will not be dismissed without providing Claimant an opportunity to argue that her action remains a viable action despite the recent decision in Kolnacki. Claimant is on notice, however, that the claim may be subject to dismissal for the reason originally argued by Defendant.

It would be far more prudent for Claimant to avail herself of the alternative of seeking permission to file a late claim, pursuant to Court of Claims Act §10(6), at least with respect to any of the causes of action based on negligence, since the three-year CPLR Article 2 statute of limitations has not yet run.

Consequently, for the reasons set forth above, Claimant’s motion for an extension of time in which to file her amended claim is GRANTED and, with timely service having already been effected, Claimant is directed to file the amended claim within thirty days of the date this Decision and Order is filed and to serve on Defendant proof of such service. Claimant is again cautioned that this will not protect the claim from future jurisdictional challenge.

May 8, 2007
Albany, New York

Judge of the Court of Claims

[1]. As noted by the Court of Appeals, the situation presented in Morris was distinquishable in that it dealt with an application to deem a Notice of Intention to be the Claim in an action (Court of Claims Act § 10(8), and a Notice of Intention is not required to contain a “total sum claimed” (Court of Claims Act §11[b]). Beckley-Kamara and Kolnacki, however, were more straightforward and involved Claims that lacked the requisite information (see Beckley-Kamara v the State of New York, UID #2005-016-060, Claim No. 110488, Motion Nos. M-69949, CM-70010 [Ct Cl Nov. 18, 2005] Marin, J.).