New York State Court of Claims

New York State Court of Claims

SCHLENKER v. STATE OF NEW YORK, #2008-037-025, Claim No. 110741, Motion No. M-74511


Synopsis


Case Information

UID:
2008-037-025
Claimant(s):
ERIC SCHLENKER
1 1.The caption has been amended sua sponte to reflect the State of New York as the only proper Defendant.
Claimant short name:
SCHLENKER
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended sua sponte to reflect the State of New York as the only proper Defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110741
Motion number(s):
M-74511
Cross-motion number(s):

Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Simon F. Manka, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: Gregory P. MillerAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 2, 2008
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following were read and considered with respect to Defendant’s motion to dismiss the claim:
1. Notice of motion and supporting affirmation of Assistant Attorney General Gregory

P. Miller dated January 29, 2008, with annexed Exhibits A-C.


Filed papers: Claim filed April 7, 2005; Answer filed May 16, 2005.

This is an action to recoup compensation for a period of time when the Claimant was suspended from his employment allegedly due to actions of the Defendant. According to the claim, Defendant’s actions consisted of intentional infliction of emotional harm, malicious prosecution, abuse of process, prima facie tortious behavior, negligence, reckless investigation, and violations of 42 USC § 1983. Defendant brings the present unopposed motion to dismiss the claim.

As Defendant correctly notes, Claimant’s causes of action sounding in intentional infliction of emotional harm and in alleged violations of 42 USC § 1983 must be dismissed. Public policy prohibits the maintenance of claims against the State for intentional infliction of emotional harm (see Lynn v State of New York, 33 AD3d 673 [2006]; Wyllie v District Attorney of County of Kings, 2 AD3d 714 [2003]; Wheeler v State of New York, 104 AD2d 496 [1984]). Moreover, claims based on alleged violations of rights guaranteed by the United States Constitution may not be maintained in the Court of Claims because the State of New York is not a “person” amenable to suit under 42 USC § 1983 (see Will v Michigan Dept. of State Police, 491 US 58 [1989]; Brown v State of New York, 89 NY2d 172 [1996]). Thus, Claimant’s causes of action for intentional infliction of emotional harm and for alleged violations of the Constitution of the United States brought under 42 USC § 1983 are dismissed.

Defendant further argues that Claimant’s remaining causes of action must be dismissed because the claim fails to comply with § 11 (b) of the Court of Claims Act as the claim as served fails to include the total sum claimed. Strict compliance with the requirements of § 11 (b) of the Court of Claims Act is a jurisdictional prerequisite to the State’s waiver of sovereign immunity (see Lepkowski v State of New York, 1 NY3d 201 [2003]). Thus, the Court of Claims lacks jurisdiction over a claim that fails to specify the items of damage or contain a total sum claimed as required by § 11 (b) of the Court of Claims Act (Kolnacki v State of New York, 8 NY3d 277 [2007]).

Since the Court of Appeals decision in Kolnacki, the legislature has amended § 11 (b) of the Court of Claims Act (L 2007, ch 606). Actions for personal injuries, medical, dental or podiatric malpractice or wrongful death are now exempt from the requirement that the claim state the total sum claimed. This amendment applies to claims pending in the Court of Claims on or after April 28, 2008 (L 2008, ch 64). Unfortunately, the requirement that the total sum claimed be specified in the claim remains with respect to all other actions. Because the claim herein does not seek recovery for personal injuries, malpractice or wrongful death, the amendment does not apply to this claim. Thus, the claim may be dismissed as being jurisdictionally defective if it fails to specify the total sum claimed.

Defendant attaches a copy of the claim as served on the attorney general as Exhibit A to its motion papers. As alleged by Defendant, the claim served does not contain the total sum claimed. Undoubtedly, unbeknownst to Defendant, the claim as filed does include the total sum claimed. In order to commence an action in this Court, however, the pleading requirements of § 11 (a) of the Court of Claims Act require that the claim be filed with the Clerk of the Court and that “a copy shall be served upon the attorney general.” Because the claim served did not contain the total sum claimed, it was NOT a copy of the claim filed (see Ali v State of New York, Ct Cl, February 7, 2006, Sise, P.J., claim no. 110988, motion nos. M-70517, M-70665, CM-70622, UID # 2006-028-516).[2] Thus, neither the pleading requirements of § 11 (a) nor the jurisdictional requirements of § 11 (b) of the Court of Claims Act have been satisfied (see Williams v State of New York, Ct Cl, October 26, 2007, McCarthy, J., claim no. 111806, motion no. M-71303, UID # 2007-040-059). Accordingly, it is hereby

ORDERED, that Defendant’s motion M-74511 is granted and claim no. 110741 is dismissed.


July 2, 2008
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims




[2]. This and other unreported decisions may be found on the Court’s website at www.nyscourtofclaims.state.ny.us.