New York State Court of Claims

New York State Court of Claims

GRIFFIN v. THE STATE OF NEW YORK, #2007-028-580, Claim No. 102799, Motion No. M-73619


Synopsis


State’s motion to dismiss on the ground that the claim does not contain a total sum claimed is denied in light of the recent amendment to 11(b) which removes that requirement from claims alleging personal injury, medical, dental or podiatric malpractice or wrongful death (see also, CPLR 3017[c]).

Case Information

UID:
2007-028-580
Claimant(s):
MERVIN ISHAMEL GRIFFIN, as Administrator of the Goods, Chattels and Credits which were of the Estate of SHIRLEY B. GRIFFIN SPRUELL
Claimant short name:
GRIFFIN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102799
Motion number(s):
M-73619
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant’s attorney:
DINKES & SCHWITZER, P.C.BY: Anthony P. Forgione, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERAL
BY: Mary E. Oleske, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
Albany
City:
December 17, 2007
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on defendant’s motion for an order of dismissal:

1. Notice of Motion and Supporting Affirmation of Mary E. Oleske, Esq., with annexed Exhibits; and


2. Affidavit in Opposition (none received).


Filed papers: Claim; Answer


Defendant has moved to dismiss this action on the ground that the claim fails to state a “total sum claimed” as was previously required by section 11(b) of the Court of Claims Act. In so moving, defendant relies on the Court of Appeals decision in Kolnacki v State of New York (8 NY3d 277 [2007]). After that decision was issued, and to overrule its effect, the Legislature amended section 11(b) (L 2007, ch 606) to provide as follows:
The claim shall state the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed.
(Emphasis added.) In this way, the pleading requirement in this Court was brought into agreement with the general pleading requirement for a demand for relief found in CPLR 3017(c). The amendment applies to all cases, such as this one, that were currently pending at the time it was enacted. Inasmuch as this claim seeks recovery for the personal injury, pain and suffering and wrongful death of claimant’s decedent, defendant’s motion is DENIED.


Albany
December 17, 2007, New York

HON. RICHARD E. SISE
Judge of the Court of Claims