New York State Court of Claims

New York State Court of Claims

WARRICK v. THE STATE OF NEW YORK, #2007-033-247, Claim No. 111828, Motion Nos. M-72822, M-72884, M-72966


Synopsis



Case Information

UID:
2007-033-247
Claimant(s):
PAULINUS WARRICK and LUCILLE WARRICK
Claimant short name:
WARRICK
Footnote (claimant name) :

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

Third-party claimant(s):
THE STATE OF NEW YORK
Third-party defendant(s):
BURLINGTON INSURANCE GROUP
Claim number(s):
111828
Motion number(s):
M-72822, M-72884, M-72966
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Dalli & Marino, LLPBy: John Dalli, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: John L. Belford, IV, Assistant Attorney General
Third-party defendant’s attorney:
Ford, Marrin, Esposito, Witmeyer & Gleser, L.L.P.By: Alexander G. Henlin, Esq.
Signature date:
June 6, 2007
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim by Paulinus Warrick (hereinafter “claimant”) for damages alleged to have incurred as a result of negligence by defendant on February 9, 2004, at the State University of New York at Stony Brook, Stony Brook, New York. The claim of Lucille Warrick is derivative in nature.

This case sounds in labor law. Claimant was working in a building known as Tabler Caf
é
for a subcontractor and was descending a ladder when his foot got tangled in a rope on the ladder, thereby causing him to fall.


Presently, there are three motions pending before the Court. The first (M-72822) is a motion by third-party defendant to dismiss the third-party complaint. The second (M-72884) is a motion by defendant/third-party claimant for a declaratory judgment pursuant to Court of Claims Act §9(9-a) stating that the third-party defendant has a duty to defend and indemnify the State of New York. Lastly, claimant has submitted a motion (M-72966) to amend the claim to include the injuries that he suffered.

The Court will begin with claimants’ motion to amend the claim[1].

The requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Lurie v State of New York, 73 AD2d 1006, aff’d 52 NY2d 849). The purpose of these requirements is to give the State prompt notice of an occurrence and an opportunity to investigate the facts and prepare a defense. Court of Claims Act §11(b) sets forth five elements which must be included in a claim: (1) the time when the claim arose; (2) the place where the claim arose; (3) the nature of the claim; (4) the items of injuries claimed to be suffered; and, (5) the total sum claimed. Failure to include all of the items in the original claim deprives a court of jurisdiction as the items are essential to their claim (Artale v State of New York, 140 AD2d 919).

Recently, in Kolnacki v State of New York, 8 NY3d 277, the Court of Appeals said, “Lepkowski [v State of New York (1 NY3d 201)] made clear that all of the requirements in section 11(b) are ‘substantive conditions upon the State's waiver of sovereign immunity’ (1 NY3d at 207). The failure to satisfy any of the conditions is a jurisdictional defect” (8 NY3d 280-281).

In the instant matter, claimant has failed to include in the claim any injuries at all. Claimant admits in his moving papers that the injuries are not listed in the claim. Thus, the Court finds that the original claim is jurisdictionally defective. A jurisdictionally defective claim cannot be cured by an amendment (Grande v State of New York, 160 Misc 2d 383).

Claimant acknowledges that the failure to include the injuries in the claim was an oversight as the injuries were included in a notice of intention served by claimant.

As previously mentioned, the incident occurred on February 9, 2004. Claimant served defendant with the notice of intention on May 7, 2004. The claim was filed on January 12, 2006, and served on defendant on December 19, 2005. The instant motion was served on February 15, 2007.

Had claimant realized his error prior to February 9, 2006, then claimant could have simply served and filed a new claim prior to February 9, 2006. After that deadline passed, claimant had available two remedies. The first remedy was to make a motion pursuant to Court of Claims Act §10(8) to treat the notice of intention as a claim. The other remedy would have been to make a motion to file a late claim pursuant to Court of Claims Act §10(6). However, both of those motions must be made prior to the expiration of the statute of limitations in the CPLR for a similar suit between individuals. In this matter, the statute of limitations is three years (CPLR 214), and, thus, expired on February 9, 2007. Claimant’s motion was made after such date. The Court is unable to change the motion to amend to a motion pursuant to Court of Claims Act §10(8) to convert the notice of intention to a claim.

Based on the foregoing, the Court is without jurisdiction in this matter and dismisses the claim. The remaining motions are denied as moot[2]. The Clerk of the Court is directed to close the file.



June 6, 2007
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1].The following papers have been read and considered on claimants’ motion: Notice of Motion to Amend Claim dated February 15, 2007 and filed February 20, 2007; Affirmation in Support of Motion to Amend Claim of John Dalli, Esq. with annexed Exhibits A-C dated February 15, 2007 and filed February 20, 2007; Affirmation in Opposition of John L. Belford, IV, Esq. dated March 12, 2007 and filed March 14, 2007.

[2].The following papers were read and considered on third-party defendant’s motion: Notice of Motion dated January 9, 2007 and filed January 12, 2007; Attorney Affirmation in Support of Defendant’s Motion of Alexander G. Henlin, Esq. with annexed Exhibits A-J dated January 9, 2007 and filed January 12, 2007; Affirmation in Opposition of John L. Belford, IV, Esq. with annexed Exhibits A-B dated March 7, 2007 and filed March 12, 2007; Reply Affirmation in Further Support of the Burlington Ins. Co.’s Motion for Relief Pursuant to CPLR 3126 of Alexander G. Henlin, Esq. dated March 13, 2007 and filed March 16, 2007.

The following papers were read and considered on defendant/third-party claimant’s motion: Notice of Motion dated January 23, 2007 and filed January 29, 2007; Affirmation in Support of John L. Belford, IV, Esq. with annexed Exhibits 1(A-C) -3 dated January 23, 2007 and filed January 29, 2007; Attorney Affirmation in Opposition to the State’s Motion for Declaratory Judgment of Alexander G. Henlin, Esq. with annexed Exhibits K-L dated March 7, 2007 and filed March 12, 2007; Third-Party Defendant The Burlington Insurance Company’s Memorandum of Law in Opposition to the Defendant/Third-Party Plaintiff The State of New York’s Motion for a Declaratory Judgment dated March 7, 2007 and received March 15, 2007; Reply Affirmation in Support of Motion of John L. Belford, IV, Esq. with annexed Exhibits A-B dated April 11, 2007 and filed April 12, 2007.