New York State Court of Claims

New York State Court of Claims

FINIZIA v. THE STATE OF NEW YORK, #2007-044-571, Claim No. 111265, Motion Nos. M-73323, CM-73498


Synopsis


Motion in personal injury claim for permission to treat a timely-filed notice of intention as a claim and cross motion to dismiss for failure to state a sum certain in the claim, pursuant to Kolnacki v State of New York, 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:
2007-044-571
Claimant(s):
EDWIN FINIZIA
Claimant short name:
FINIZIA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111265
Motion number(s):
M-73323
Cross-motion number(s):
CM-73498
Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
ZWIEBEL, BRODY, GOLD & FAIRBANKS, L.L.P.BY: Jeffrey M. Brody, Esq., of counsel
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Geoffrey B. Rossi, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 29, 2007
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

Claimant herein moves for permission to treat a timely-filed document entitled “Notice of Claim” as a claim.[1] 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. The claim in this case failed to include such a total sum, initially necessitating such a motion. Defendant State of New York (defendant) cross-moves for dismissal of the claim herein for failure to state a total sum claimed. 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 seeks damages for personal injuries incurred while claimant was incarcerated,[2] no sum certain is required to be stated in the claim pursuant to the amended provisions of Court of Claims Act § 11 (b). Accordingly, claimant's Motion No. M-73323 for permission to treat the “Notice of Claim” as a claim is denied as moot, and defendant's Cross-Motion No. CM-73498 to dismiss the claim for failure to state a sum certain is denied.

August 29, 2007
Binghamton, New York

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


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

1) Notice of Motion filed on April 27, 2007; Affirmation of Jeffrey M. Brody, Esq., of counsel, dated April 24, 2007, and attached Exhibits A through J.

2) Notice of Cross-Motion filed on May 18, 2007; Affirmation of Geoffrey B. Rossi, AAG, dated May 16, 2007, and attached Exhibits A and B.


3) Affirmation in Opposition of Jeffrey M. Brody, Esq., of counsel, dated May 22, 2007.

4) Reply Affirmation of Geoffrey B. Rossi, AAG, dated June 1, 2007, and attached Exhibits A through I.

Filed papers: Claim filed on August 18, 2005; Verified Answer filed on September 26, 2005.


[1]. Although the document was entitled “Notice of Claim,” it appears to have actually been a claim, filed and served pursuant to a Decision and Order of this Court granting claimant permission to file a late claim (Finizia v State of New York, Ct Cl, Feb. 7, 2005, Lebous, J., Claim No. None, Motion No. M-69538 [UID # 2005-019-506]). The tortured history involved in the filing and service of this and the other documents designated “Claims” need not be recited here.
[2]. While defendant contends that claimant was not given permission by the Court to bring the cause of action for medical malpractice set forth in the claim, that is irrelevant to the matter at hand, given that the damages sought are for personal injury, and thus no sum certain is required to be stated.