New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2009-044-521, Claim No. 112530, Motion No. M-76093


Claimant’s failure to include a total amount of damages in the claim served upon the Attorney General constitutes a material discrepancy with the claim filed with the Court, and the claim is dismissed for lack of jurisdiction.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 16, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


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 [2007]).[1] However, the Court notes that the Filed Claim alleges that “[c]laimant was damaged in the amount of $189.95.”[2] The 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 [2008]; 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 [1996] [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, supra), 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 granted.[3]

Claim No. 112530 is hereby dismissed in its entirety.

March 16, 2009
Binghamton, New York

Judge of the Court of Claims

The following papers were read on defendant’s motion:

1) Notice of Motion filed on January 12, 2009; Affirmation of James E. Shoemaker, Assistant Attorney General, dated January 9, 2009, and attached Exhibit A.

2) Claimant’s Affidavit in Opposition filed on January 23, 2009.

Filed papers: Claim filed on July 12, 2006; Verified Answer filed August 14, 2006.

[1]. After Kolnacki was decided, Court of Claims Act § 11 (b) was amended to remove the jurisdictional requirement that a sum certain be stated in personal injury, medical, dental, or podiatric malpractice, or wrongful death actions. However, a statement of the total sum claimed continues to be a jurisdictional requirement in all other types of claims, including this claim to recover for the loss of claimant’s personal property (see Court of Claims Act § 11 [b]).
[2]. Both the Served Claim and the Filed Claim are “fill-in-the-blank” forms, and except for the insertion of “$189.95” in the last sentence of the Filed Claim, they contain identical allegations.
[3]. 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] [2005]. 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.