New York State Court of Claims

New York State Court of Claims

VANATTA v. THE STATE OF NEW YORK, #2007-036-246, Claim No. 113374, Motion Nos. M-73807, CM-73979


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:
PARKER WAICHMAN ALONSO, LLPBy: Raymond C. Silverman, Esq.
Defendant’s attorney:
By: Gwendolyn Hatcher, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 18, 2007
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for leave to amend his claim, deem the amended claim served nunc pro tunc and strike defendant’s seventh affirmative defense that the claim fails to state the injuries alleged. Defendant opposes the motion and cross-moves to dismiss the claim.[1] The claim alleges that on April 11, 2006 at about 12:10 p.m. claimant was injured when his motor vehicle was hit by a motor vehicle owned by defendant and operated by one of its employees at a specified intersection in Brooklyn, New York. A notice of intention to file a claim was served on defendant on July 6, 2006; the claim was served on February 21, 2007. Defendant answered on March 20, 2007 asserting, among others, its seventh affirmative defense that the claim failed to comply with Court of Claims Act § 11 by failing to state the injuries alleged.

The claim stated Mr. Vanetta sustained “severe and permanent personal injuries.” Claimant’s motion includes his proposed amended claim detailing his injuries resulting from the accident. He contends the absence of this level of detail from the original claim does not rise to a jurisdictional defect because he provided a more detailed statement in the notice of intention, “left arm and hand injury, nerve damage to the left arm and hand requiring surgical intervention, severe lacerations requiring over 100 stitches, torn tricep [sic] muscle, scaring [sic], from top of left shoulder to the left wrist,” and thus defendant’s ability to investigate the merits of the claim was not prejudiced.

Defendant argues that the lack of specificity in the claim is a jurisdictional defect under Court of Claims Act § 11 (b), not simply cured by amending the claim. The statute “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 v State of New York, 1 NY3d 201, 207 [2003].[2] “The failure to satisfy any of the conditions is a jurisdictional defect,” and the Court of Appeals goes on to say that “nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary.” Kolnacki v State of New York, 8 NY3d 277, 281 [2007]. However, neither Lepkowski nor Kolnacki dictate that statements made for the purpose of satisfying the jurisdictional prerequisites of the statute need be exhaustive. Kolnacki teaches that a “claim may always be amended at a later time, if necessary.” Id. Lepkowski’ s “the guiding principle informing section 11 (b)” is “to enable the . . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances.” Lepkowski, 1 NY3d at 207 (quoting Heisler v State of New York, 78 AD2d 767 [4th Dept 1980]).

The claim here alleges “severe and permanent” injuries to claimant with the date, time of day, and intersection of the alleged accident, as well as the name of the vehicle’s operator and its license plate number. Nothing was absent from the claim that would inhibit the State from investigating the accident and determining its potential liability. The jurisdictional elements stated in the claim, in conjunction with the greater detail provided to the State in the notice of intention seven months before, demonstrate that the State was amply informed of the underlying facts of the incident and thus able to investigate the claim promptly and to ascertain its liability without the likelihood of being misled or deceived. In the circumstances here, the claim’s statement of the injuries sustained suffices to form a jurisdictional predicate for the court to view it as passing jurisdictional muster and to permit the claim now to be amended to include a more detailed statement of such injuries, consistent with the Court of Appeals guidance in Kolnacki.

Accordingly, the motion to amend the claim is granted, the cross-motion to dismiss the claim is denied, and the amended claim is deemed served and filed as of the date of this decision.

December 18, 2007
New York, New York

Judge of the Court of Claims

[1].The court considered the following papers on the motions: claimant’s notice of motion dated July 30, 2007, together with affirmation in support, and exhibits; defendant’s notice of cross-motion dated September 19, 2007 together with affirmation in opposition to the motion and in support of the cross-motion; claimant’s affirmation in opposition to the cross-motion and reply dated October 30, 2007 and exhibit.
[2].The law has since been amended to eliminate the requirement that the total sum claimed be stated in personal injury, wrongful death, and medical, dental and podiatric malpractice claims.