New York State Court of Claims

New York State Court of Claims

STACY v. THE STATE OF NEW YORK, #2007-031-040, Claim No. 106916, Motion Nos. M-73289, CM-73544


Failure to set forth total sum claimed is no longer a jurisdictional defect requiring dismissal. Claimant’s motion to amend claim is granted. Defendant’s motion to dismiss claim is 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:
Douglas Kaplan, Esq.
Defendant’s attorney:
New York State Attorney General
BY: Patrick F. MacRae, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 30, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on motion by Claimant for permission to amend his claim, and on motion by Defendant for dismissal of the claim:
  1. Claimant’s Notice of Motion (M-73289), filed April 30, 2007;
  2. Affirmation of Douglas Kaplan, Esq., dated April 27, 2007, with attached exhibits;
3) Defendant’s Notice of Cross Motion (CM-73544), filed June 8, 2007;
4) Affirmation of Patrick F. MacRae, Esq., dated June 6, 2007;
5) Defendant’s Memorandum of Law, dated June 6, 2007, with attached exhibits;
6) Reply Affirmation of Douglas Kaplan, Esq., dated June 18, 2007. I have before me two motions. With motion M-73289, Claimant seeks permission to amend his claim to assert a total sum claimed. With its cross motion (CM-73544), Defendant seeks dismissal of the claim for failure to state a total sum claimed. Both motions are in response to the Court of Appeals decision in Kolnacki v State of New York (8 NY3d 277), in which the Court of Appeals dismissed an otherwise viable claim against the State because it failed to set forth a total sum claimed. By way of background, I note that prior to Kolnacki, the Court of Appeals in Lepkowski v State of New York (1 NY3d 201), stated:
“The State’s waiver of immunity from suits for money damages is not absolute, but rather is contingent upon a claimant's compliance with specific conditions placed on the waiver by the Legislature . . . . Further, ‘[b]ecause suits against the State are allowed only by the State’s waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed’ (Lichtenstein v State of New York, 93 NY2d 911, 913 [1999], quoting Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). As relevant here, section 11 (b) places five specific substantive conditions upon the State’s waiver of sovereign immunity by requiring the claim to specify (1) ‘the nature of [the claim]’; (2) ‘the time when’ it arose; (3) the ‘place where’ it arose; (4) ‘the items of damage or injuries claimed to have been sustained’; and (5) ‘the total sum claimed.’”

at 206, 207.
The Kolnacki Court, following this clear precedent, strictly construed the statute and dismissed the claim as jurisdictionally defective because it failed to comply with the Court of Claims Act § 11(b) requirement that the total sum claimed be set forth. In light of the Kolnacki decision, counsel in this case (as well as many others) were compelled to engage in motion practice to address what has become known as the “Kolnacki issue” - - the failure of an otherwise viable claim to satisfy the statutory requirement to set forth the total sum claimed.

Here, Claimant requests that he be permitted to amend his claim, or that the claim be deemed amended to set forth an ad damnum of $10,000,000.00. Defendant, of course, requests dismissal of the claim due to Claimant’s failure to comply with this jurisdictional prerequisite.

For two reasons, I find that Claimant’s application should be granted and Defendant’s denied. First, and most importantly, on August 15, 2007 Governor Spitzer signed into law a bill that amends the Court of Claims Act § 11(b) to remove the “total sum claimed” requirement in certain types of claims. This bill (2007; A.8692-C/S. 4878-B), by its specific terms, applies to all cases currently pending. Accordingly, I find that the failure to set forth the total sum claimed is no longer a jurisdictional prerequisite and the Defendant’s motion to dismiss must be denied.

Additionally, I note that in this particular case, although the total sum claimed was not set forth in the claim, it was set forth in Claimant’s notice of intention. As Judge Scuccimarra stated in Peralta v State of New York, (Ct Cl, February 10, 2004 [Claim No. 107542, Motion No. M-67396, Cross-Motion No. CM-67664], UID# 2004-030-902):
“Nothing in the decisions relied on by defendant states or implies that the contents of the notice of intention are irrelevant to section 11(b) inquiry. Indeed, in Grande, in response to the contention that the State was not prejudiced by the inadequacy of claim because it had more specific information in agency records, the court noted that ‘defendant is not required to go beyond a claim or notice of intention in order to investigate an occurrence or ascertain information which should be provided pursuant to Court of Claims Act . . . [section 11(b)]’ (160 Misc 2d 383, 387, emphasis supplied). This language recognizes that a notice of intention is not in the same category as the agency records relied on therein. Indeed, service of a document that complies with sections 10 and 11 is the sine qua non of Court of Claims jurisdiction over tort claims. How, then, could it be rationally argued that we should ignore the contents of that document when determining whether a claimant has properly invoked that jurisdiction?” (Emphasis in original.) (see also Duverger v State of New York, Ct Cl, March 23, 2006 [Claim No. 106062, Motion No. M-71304], Schweitzer, J., UID #2006-036-511).
Accordingly, even without the new amendment to the Court of Claims Act § 11(b), I would be inclined to deny Defendant’s application as Claimant’s notice of intention, which was the jurisdiction invoking document in this instance, already set forth the total sum claimed, thereby satisfying the statutory prerequisite.

Finally, with regard to Claimant’s requested relief, as the proposed amendment is no longer necessary, Claimant’s motion is denied as moot.

Based upon the foregoing, it is hereby

ORDERED, that Claimant’s motion for permission to amend his claim is DENIED AS MOOT.
And it is further

ORDERED, that Defendant’s cross motion for dismissal of the claim is DENIED.

August 30, 2007
Rochester, New York

Judge of the Court of Claims