Notice of Motion to Amend Claim, filed April 20, 2007
Affirmation of Peter J. Addonizio, Esq., dated April 17, 2007
Exhibits, annexed to the moving papers
Notice of Motion to File a Late Claim, filed May 3, 2007
Affirmation of Peter J. Addonizio, Esq., dated April 27, 2007
Exhibits A - G, annexed to the moving papers
Affirmation in Opposition of Thomas M. Trace, Esq., dated May 25, 2007 with
annexed Exhibits A and B;
Notice of Cross-Motion to Dismiss Claim, filed May 21, 2007
Affirmation of Thomas M. Trace, Esq., dated May 18, 2007
Exhibits A - C, annexed to the moving papers
Responding Affirmation of Peter J. Addonizio, Esq., dated May 24, 2007
This personal injury negligence action arises as a result of injuries alleged
to have been sustained by claimant Julie L. Rusho in an automobile accident
which occurred on May 22, 2006. The claim was served on the Attorney General on
or about July 27, 2006 and filed with the Clerk of the Court of Claims on July
The original claim demanded “judgment in an amount which exceeds the
jurisdictional limits of all lower courts”, rather than setting forth a
specific dollar amount of damages. The claimants, in their first motion, seek
to amend the claim to set forth total damages sought of one million dollars.
Concededly, this motion was prompted by the recent Court of Appeals decision in
Kolnacki v State of New York, 8 NY3d 277. Claimants argue that
generally, under CPLR Rule 3025, leave to amend is freely granted.
Defendant opposed the motion, relying upon “Kolnacki”,
arguing that the failure to provide a total sum of damages is a fatal
jurisdictional defect which cannot be cured by amendment.
During the pendency of these motions, Court of Claims Act § 11 (b) was
amended; the relevant portion of this section now states that:
[t]he claim shall state the time when and place where such claim arose, the
nature of same, the items of damage or injuries claimed to have been sustained
and, except in an action to recover damages for personal injury, medical,
dental or podiatric malpractice or wrongful death, the total sum claimed.
Chapter 606 of the Laws of 2007 (the enabling provision for the amendment of
Court of Claims Act § 11) provides, in relevant part, that the
shall take effect immediately; provided, that notwithstanding any other
provision of law, any claim which was pending on or after November 27, 2003 and
which would have been viable if this 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 . . . .
In light of this statutory change, the motion is denied as the requested relief
is unnecessary. The lack of a specific dollar amount of damages in this
personal injury action is not fatal.
Inasmuch as the motion for leave to file a late claim was predicated upon the
need to address the “Kolnacki” issue, that motion is also
denied as moot.
Lastly, the third motion - the defendant’s cross-motion to dismiss the
claim for failure to meet the jurisdictional requirements of Court of Claims Act
§ 11 - is likewise denied as the “Kolnacki” grounds for
this motion were nullified by the new statutory amendment referred to
In sum, all motions are denied, based upon the recent amendment to Court of
Claims Act § 11.