New York State Court of Claims

New York State Court of Claims

SALERNO v. THE STATE OF NEW YORK, #2007-040-058, Claim No. 112351, Motion Nos. M-73420, CM-73757


Synopsis


Motion to Dismiss – Court of Claims Act § 11(b) – failure to status sum certain – denied amendment to CCA retroactive. Cross-motion to serve and file amended claim is granted.

Case Information

UID:
2007-040-058
Claimant(s):
JOANNE SALERNO
Claimant short name:
SALERNO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112351
Motion number(s):
M-73420
Cross-motion number(s):
CM-73757
Judge:
CHRISTOPHER J. McCARTHY
Claimant’s attorney:
ELOVICH & ADELL, ESQS.By: Mitchel Sommer, Esq.
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Todd A. Schall, Esq., AAG
Third-party defendant’s attorney:

Signature date:
October 22, 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 to serve and file an Amended Claim setting forth a total sum claimed is granted and Claimant’s request 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 May 18, 2006, 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 (Schall affirmation). 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, originally returnable on June 13, 2007, and Claimant’s Cross-Motion, originally returnable on July 25, 2007, were 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 Ms. Salerno’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, as it appears in Claimant’s Exhibit G attached to her motion, within thirty (30) days of the date of filing of this Decision and Order, except that Claimant is directed further to delete the phrase “which would otherwise have jurisdiction” from the “WHEREFORE” clause. Claimant’s motion to serve and file a late claim pursuant to Court of Claims Act §10(6) is denied as moot.


October 22, 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 cross-motion to serve and file an Amended Claim or in the alternative for permission to serve and file a late claim pursuant to Court of Claims Act § 10(6):

Papers Numbered


Notice of Motion, Affirmation &
Exhibit attached 1


Notice of Cross-Motion, Affirmation &
Exhibits attached 2

Defendant’s Affirmation 3


Filed Papers: Claim, Answer