New York State Court of Claims

New York State Court of Claims

MORCK v. THE STATE OF NEW YORK, #2007-044-570, Claim No. 111353, Motion Nos. M-73322, CM-73380


Synopsis


Motion to dismiss personal injury case for failure to state a sum certain in the claim, pursuant to Kolnacki v State of New York, and cross-motion for permission to amend claim to state a sum certain, both denied as moot due to recent legislative enactment removing this jurisdictional requirement in certain types of actions, including personal injury claims.

Case Information

UID:
2007-044-570
Claimant(s):
TRAVIS MORCK
Claimant short name:
MORCK
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111353
Motion number(s):
M-73322
Cross-motion number(s):
CM-73380
Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
GEOGHAN COHEN & BONGIORNO, LLCBY: Joseph R. Bongiorno, Esq., of counsel
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 13, 2007
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant State of New York (defendant) moves for dismissal of the claim herein for failure to state a total sum claimed. This motion is made in light of the Court of Appeals' decision in Kolnacki v State of New York (8 NY3d 277 [2007]), in which that Court held that claimant's failure to include a total sum of monetary damages in the claim, as required by Court of Claims Act § 11 (b), constituted a jurisdictional defect. Claimant cross-moves for permission to amend the claim to state a sum certain.

While the motion and cross motion have been pending, however, the requirement set forth in Court of Claims Act § 11 (b) that a total amount claimed be stated in the claim has been amended (L 2007, ch 606) to provide that a sum certain is not required to be stated in the claim in personal injury, medical, dental or podiatric malpractice, or wrongful death suits. The amended law is applicable by its terms to claims pending on the effective date of the law, and is thus dispositive of both the motion and the cross motion herein.

Because the underlying claim in this action is based on personal injury resulting from defendant's alleged negligence, a total sum claimed is not required to be stated in the claim pursuant to the amended provisions of Court of Claims Act § 11 (b). Accordingly, defendant's Motion No. M-73322 to dismiss the claim for failure to state a sum certain is denied, and claimant's Cross Motion No. CM-73380 for permission to amend the claim to state a sum certain is denied as moot.

September 13, 2007
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on defendant’s motion and claimant’s cross motion:

1) Notice of Motion filed on May 4, 2007; Affirmation of Joseph F. Romani, AAG, dated May 2, 2007, and attached Exhibits A through D.

2) Notice of Cross Motion filed on May 14, 2007; Affirmation of Joseph R. Bongiorno, Esq., of counsel, dated May 9, 2007, and attached Exhibits A through E.

3) Affirmation in Opposition to Cross Motion of Joseph F. Romani, AAG, dated May 21, 2007.

4) Reply Affirmation of Joseph R. Bongiorno, Esq., of counsel, dated June 11, 2007, and attached Exhibit A.

Filed papers: Claim filed on September 12, 2005; Verified Answer filed on September 26, 2005.