Claimant, an inmate proceeding pro se, filed this claim on July 12, 2006 (the
Filed Claim) alleging that defendant State of New York (defendant) negligently
lost certain personal property belonging to him when he was transferred to the
Special Housing Unit at Elmira Correctional Facility. Defendant answered and
asserted several affirmative defenses. Defendant now moves to dismiss, arguing
that claimant’s failure to include the amount of damages sought in the
claim served on the Attorney General (the Served Claim) renders it
jurisdictionally defective. Claimant opposes the motion. As defendant notes, the
Served Claim does not contain a total sum claimed (Defendant’s Motion to
Dismiss, Exhibit A). The lack of the total sum claimed is a jurisdictional
defect, and the claim could be dismissed solely on this basis (Kolnacki v
State of New York,
8 NY3d 277 ).
However, the Court notes that the Filed Claim alleges that “[c]laimant was
damaged in the amount of $189.95.”
Court will therefore determine whether the Filed Claim, which is
jurisdictionally adequate on its face, is sufficient to provide the Court with
subject matter jurisdiction over this action.
Court of Claims Act § 11 (a) (i) provides, in relevant part, that
“[t]he claim shall be filed with the clerk of the court; and
. . . a copy shall be served upon the attorney general”
(emphasis added). None of the Court of Claims decisions which have addressed
the differences between filed and served claims have required that the filed and
served claims exactly mirror each other (see Van Buskirk v State of New
York, 22 Misc 2d 953 ; Hardy v State of New York, Ct Cl, Jan.
4, 2008, Hudson, J., Claim No. 110013, Motion No. M-73636 [UID # 2007-034-554];
Ali v State of New York, Ct Cl, Feb. 7, 2006, Sise, P.J., Claim No.
110988, Motion Nos. M-70517, M-70665, Cross Motion No. CM-70622 [UID #
2006-028-516]; Gordon v State of New York, Ct Cl, Dec. 31, 2003, Hard,
J., Claim No. 105141, Motion No. M-67068, Cross Motion No. CM-67122 [UID #
2003-032-133]). Instead, the courts have considered whether the variations
between the two pleadings were sufficiently extensive that “the served
pleading [could not] fairly be deemed a ‘copy’ ” of the filed
pleading (Van Buskirk v State of New York, supra at 5; see also Matter
of Gershel v Porr, 89 NY2d 327, 332  [where the Court noted that
“papers served [in Supreme and County Court civil proceedings] must
conform in all important respects to the papers filed”]).
In this case, the Court finds that, given that the failure to assert a total
sum claimed is a jurisdictional defect (Kolnacki v State of New York,
), claimant’s failure to include the total sum claimed in the
Served Claim constitutes a material discrepancy between the two pleadings such
that the Served Claim cannot be deemed “a copy” of the Filed Claim.
Because claimant has failed to comply with Court of Claims Act § 11 (a)
(i), defendant’s motion must be
Claim No. 112530 is hereby dismissed in its entirety.
1) Notice of Motion filed on January 12, 2009; Affirmation of James E.
Shoemaker, Assistant Attorney General, dated January 9, 2009, and attached
2) Claimant’s Affidavit in Opposition filed on January 23, 2009.
Filed papers: Claim filed on July 12, 2006; Verified Answer filed August 14,
. Claimant contends that because defendant
received a copy of the Institutional Inmate Claim Form containing a detailed
list of the missing property and its value (the Institutional Claim), the
failure to set forth a total sum claimed is not fatal. This contention is
without merit. Initially, claimant has failed to establish that he attached a
copy of the Institutional Claim to the Served Claim such that it would be
“a part thereof for all purposes” (CPLR 3014; see Certain
Underwriters At Lloyd’s, London v William M. Mercer, Inc.,
7 Misc 3d
1008[A], 2005 NY Slip Op 50507[U] . Moreover, even if a copy of the
Institutional Claim had been attached to the Served Claim, claimant’s
failure to also attach a copy to the Filed Claim constitutes a material
discrepancy between the pleadings, warranting dismissal of this action.