New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2007-044-572, Claim No. 112084, Motion Nos. M-72676, CM-72790


Synopsis


Motion in personal injury claim for permission to amend claim to state a sum certain 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. Motion for permission to correct any defects in verification denied as moot due to defendant's failure to raise any such defects in its answer

Case Information

UID:
2007-044-572
Claimant(s):
JAMES PETTUS
Claimant short name:
PETTUS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112084
Motion number(s):
M-72676
Cross-motion number(s):
CM-72790
Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
JAMES PETTUS, pro se
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 24, 2007
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

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Decision

Claimant, an inmate proceeding pro se, filed this claim alleging that on or about December 12, 2005, medical personnel at Southport Correctional Facility improperly discontinued his prescription medication (Robaxin). Defendant answered and asserted several affirmative defenses, including that this claim is untimely and that claimant failed to include the total amount claimed. Claimant moves to cure any defect(s) in his verification and in the ad damnum clause and asserts damages of $5 million.[1] Defendant opposes the motion and cross-moves to dismiss the claim for failure 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 cross-motion herein.

Because the underlying claim in this action seeks damages for personal injuries incurred while claimant was incarcerated, no sum certain is required to be stated in the claim pursuant to the amended provisions of Court of Claims Act § 11 (b).

Claimant's Motion No. M-72676 for permission to amend the claim to state a sum certain is denied as moot, and defendant's Cross-Motion No. CM-72790 to dismiss the claim for failure to state a sum certain is denied.


September 24, 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 December 15, 2006.

2) Notice of Cross Motion filed on January 8, 2007; Affirmation of Joseph F. Romani, AAG, dated January 4, 2007, and attached Exhibits A through E.

3) “Affidavit/Affirmation” of James Pettus sworn to on January 11, 2007, in opposition to defendant’s cross motion.


Filed papers: Claim filed on March 15, 2006; Verified Answer filed on April 12, 2006.


[1]. Defendant did not address the issue of a potentially defective verification in its Verified Answer, and has therefore waived any objection or defense on that ground (Court of Claims Act § 11 [c]).