New York State Court of Claims

New York State Court of Claims

RUSHO v. STATE OF NEW YORK, #2007-042-525, Claim No. 112572, Motion Nos. M-73363


M-73245, CM-73430


Synopsis


This case involves three motions pending before the court as follows: 1) Claimants’ motion to amend the claim to insert a total sum of monetary damages; 2) Claimants’ motion for leave to file a late claim; and 3) Defendant’s cross-motion to dismiss the claim for lack of subject matter jurisdiction and personal jurisdiction. Claimants’ motion to amend the claim to insert a total sum of monetary damages is denied as the requested relief is unnecessary. Claimants’ motion for leave to file a late claim was predicated upon the need to address the “Kolnacki” issue and that motion is also denied as moot. 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.

Case Information

UID:
2007-042-525
Claimant(s):
JULIE L. RUSHO AND WAYNE K. RUSHO
Claimant short name:
RUSHO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112572
Motion number(s):
M-73363M-73245
Cross-motion number(s):
CM-73430
Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
ALEXANDER & CATALANO, LLCBy: PETER J. ADDONIZIO, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: THOMAS M. TRACE, ESQ.Senior Attorney
Third-party defendant’s attorney:

Signature date:
November 20, 2007
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This matter involves three motions pending before the court as follows: Claimants’ motion to amend the claim to insert a total sum of monetary damages; claimants’ motion for leave to file a late claim; and defendant’s cross-motion to dismiss the claim for lack of subject matter jurisdiction and personal jurisdiction. The following papers were considered by the court:
  1. Notice of Motion to Amend Claim, filed April 20, 2007
  2. Affirmation of Peter J. Addonizio, Esq., dated April 17, 2007
  3. Exhibits, annexed to the moving papers
  4. Notice of Motion to File a Late Claim, filed May 3, 2007
  5. Affirmation of Peter J. Addonizio, Esq., dated April 27, 2007
  6. Exhibits A - G, annexed to the moving papers
  7. Affirmation in Opposition of Thomas M. Trace, Esq., dated May 25, 2007 with annexed Exhibits A and B;
  8. Notice of Cross-Motion to Dismiss Claim, filed May 21, 2007
  9. Affirmation of Thomas M. Trace, Esq., dated May 18, 2007
  10. Exhibits A - C, annexed to the moving papers
  11. Responding Affirmation of Peter J. Addonizio, Esq., dated May 24, 2007
___________________________________________

There are three motions presently pending before the court: 1) Claimants’ motion to amend the claim to insert a total sum of monetary damages; 2) Claimants’ motion for leave to file a late claim; and 3) Defendant’s cross-motion to dismiss the claim for lack of subject matter jurisdiction and personal jurisdiction.

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 28, 2006.

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. [Emphasis added].


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 aforementioned amendment:

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 above.

In sum, all motions are denied, based upon the recent amendment to Court of Claims Act § 11.



November 20, 2007
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims