Motion to Dismiss - Court of Claims Act § 11(b) - failure to status sum certain - denied amendment to CCA retroactive.
|Claimant short name:||TATE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||RONEMUS & VILENSKY
By: Lori K. Sapir, Esq.
|Defendant's attorney:||ANDREW M. CUOMO
Attorney General of the State of New York
By: Dennis M. Acton, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||October 19, 2007|
|See also (multicaptioned case)|
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 to serve and file an Amended Claim setting forth a total sum claimed is granted.
This Claim, which was filed with the Clerk of the Court on May 9, 2005, seeks recovery for personal injuries allegedly sustained by Claimant as a result of the State's negligent acts.
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 (Acton affidavit, ¶ 2). In Kolnacki v State of New York (8 NY3d 277 ), 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).
This motion was originally returnable on June 13, 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. Tate'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 amend the Claim to include a monetary sum is granted. Claimant is directed to serve and file the Amended Claim, with a monetary sum stated, within thirty (30) days of the date of filing of this Decision and Order.
October 19, 2007
Albany, New York
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 cross-motion to serve and file an Amended Claim:
Notice of Motion, Affidavit in Support 1
Notice of Cross-Motion, Affidavit
in Support of Cross-Motion and
in Opposition to Motion to Dismiss 2
State's Affidavit in Opposition 3
Filed Papers: Claim, Answer