New York State Court of Claims

New York State Court of Claims

JOSLIN v. THE STATE OF NEW YORK, #2007-040-056, Claim No. 112184, Motion Nos. M-73518, CM-73588


Synopsis


Motion to Dismiss – Court of Claims Act § 11(b) – failure to status sum certain – denied amendment to CCA retroactive.

Case Information

UID:
2007-040-056
Claimant(s):
ANDREW JOSLIN
1 1.Caption amended to reflect the State of New York as the proper defendant.
Claimant short name:
JOSLIN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
Caption amended to reflect the State of New York as the proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112184
Motion number(s):
M-73518
Cross-motion number(s):
CM-73588
Judge:
CHRISTOPHER J. McCARTHY
Claimant’s attorney:
MAINETTI, MAINETTI & O’CONNOR, PCBy: Alfred B. Mainetti, Esq.
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: GOLDBERG SEGALLA, LLP Jonathan M. Bernstein, Esq., of counsel
Third-party defendant’s attorney:

Signature date:
October 18, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

For the reasons set forth below, Defendant’s motion to dismiss the Claim based upon a failure to comply with the jurisdictional requirements of Court of Claims Act § 11(b) is denied and Claimant’s cross-motion for permission to serve and file a late claim pursuant to Court of Claims Act § 10(6) is denied as moot.

The Claim, which was filed with the Clerk of the Court on April 7, 2006, seeks recovery for personal injuries allegedly sustained by Claimant as a result of the State’s negligent acts and statutory violations under the Labor Law.

Defendant’s counsel argues that the Claim is jurisdictionally defective because it does not comply with the requirements of Court of Claims Act § 11(b) in that it does not contain a total sum claimed (Bernstein affirmation, ¶ 6). In Kolnacki v State of New York (8 NY3d 277 [2007]), the Court of Appeals held that the Court of Claims lacks jurisdiction over a Claim which fails to state “the total sum claimed,” one of the requirements of § 11(b). Kolnacki stressed that “nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary” (id. at 281).

The State’s motion was originally returnable on June 27, 2007 and was adjourned by the Court to October 10, 2007. On August 15, 2007, Governor Spitzer signed Chapter 606 of the Laws of 2007, which amended Court of Claims Act § 11(b) to except actions for “personal injury, medical, dental or podiatric malpractice or wrongful death” from the requirement that the claim state the total sum claimed. The act took effect immediately and has retroactive effect, providing that any claim pending on or after November 27, 2003 which would have been viable if the act was effective at the time the claim was filed shall not be dismissed for failure to state the total dollar amount of the claim. As Mr. Joslin’s Claim was pending on or after November 27, 2003 and the Claim would have been viable had the act been effective at the time the action was filed, the State’s motion to dismiss for failure to set forth the total sum claimed is denied (Kerin v City University of New York, 43 AD3d 1110 [2nd Dept 2007]; Moore v State of New York, 43 AD3d 1117 [2nd Dept 2007]; Bednoski v State of New York, Claim No. 113269, Motion Nos. M-73287, M-73527, Cross-Motion No. CM-73445, Lopez-Summa, J. [UID No. 2007-045-016], August 23, 2007).

Claimant’s cross-motion to serve and file a late claim pursuant to Court of Claims Act §10(6) is denied as moot.


October 18, 2007
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers were read and considered by the Court on the State’s motion to dismiss the Claim and Claimant’s motion to serve and file a late claim:

Papers Numbered


Notice of Motion, Affirmation &
Exhibits attached 1


Notice of Cross-Motion, Affirmation &
Exhibits attached 2


State’s Reply Affirmation & Opposition
to the Cross-Motion 3


Filed Papers: Claim, Answer