New York State Court of Claims

New York State Court of Claims

BURNS v. THE STATE OF NEW YORK, #2007-031-047, Claim No. 110833, Motion Nos. M-73457, CM-73581


Synopsis


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

UID:
2007-031-047
Claimant(s):
KENNETH and JULIA BURNS
1 1.The caption has been amended sua sponte to reflect the State of New York as the only proper Defendant.
Claimant short name:
BURNS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended sua sponte to reflect the State of New York as the only proper Defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110833
Motion number(s):
M-73457
Cross-motion number(s):
CM-73581
Judge:
RENÉE FORGENSI MINARIK
Claimant’s attorney:
LIPSITZ GREEN SCIME CAMBRIA, LLPBY: TERESA A. BAILEY, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney General
BY: HISCOCK & BARCLAY, LLPROBERT M. SHADDOCK, ESQ.
Third-party defendant’s attorney:

Signature date:
September 17, 2007
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers, numbered 1 to 10, were read on motion by Defendant for dismissal of the claim, and on cross-motion by Claimants for permission to amend their claim.
  1. Defendant’s Notice of Motion (M-73457), filed May 25, 2007;
  2. Affidavit of Robert M. Shaddock, Esq., sworn to May 25, 2007, with attached exhibits;
3) Claimants’ Notice of Cross Motion (CM-73581), filed June 15, 2007;
4) Affidavit of Teresa A. Bailey, Esq., sworn to June 13, 2007, with attached exhibits;
5) Claimants’ undated Memorandum of Law;
6) Correspondence of Robert M. Shaddock, Esq., dated June 18, 2007;
7) Affidavit of Robert M. Shaddock, Esq., sworn to June 18, 2007;
8) Defendant’s Reply Memorandum of Law, dated June 18, 2007;
9) Reply Affidavit of Teresa A. Bailey, Esq., sworn to July 9, 2007;
10) Correspondence of Teresa A. Bailey, dated August 29, 2007. I have before me two motions. With motion M-73457, Defendant seeks dismissal of the claim for failure to state a total sum claimed. With their cross-motion (CM-73581), Claimants request permission to amend their claim to assert 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.’” Lepkowski 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 (“CCA”) § 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, Claimants request that they be permitted to amend their claim to set forth an ad damnum of $5,000,000.00. Defendant, of course, requests dismissal of the claim due to Claimants’ failure to comply with this jurisdictional prerequisite.

In this instance, I find that Claimants’ application should be granted and Defendant’s denied. On August 15, 2007 Governor Spitzer signed into law a bill that amends the CCA to remove the “total sum claimed” requirement. This bill (L 2007, ch 606) 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.

Accordingly, I note that permission to amend is to be "freely given" upon such terms as may be just (CPLR 3025[b]). In doing so, a court should consider whether the opposing party would be prejudiced; whether the amendment would inhibit the orderly prosecution of the action; whether the moving party unduly delayed in requesting permission to amend; and whether the proposed amendment is palpably improper or insufficient as a matter of law (Excelsior Ins. Co. v Antretter Contr. Corp., 262 AD2d 124; Gonfiantini v Zino, 184 AD2d 368, 370 ). I find (and Defendant has asserted no argument otherwise) that each of these factors weighs in favor of granting Claimants’ motion for permission to amend their claim.

Based upon the foregoing, it is hereby

ORDERED, that Defendant’s motion (M-73457) for dismissal of the claim is DENIED. And it is further

ORDERED, that Claimants’ cross-motion (CM-73581) for permission to amend their claim is GRANTED. The claim is hereby DEEMED AMENDED to assert a total sum claimed as $5,000,000.00.

September 17, 2007
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims