Claimant's motion to amend the claim to correct the date of the occurrence is denied. Original claim is jurisdictionally defective for failing to state the correct date. Defendant's cross-motion to dismiss is granted. Claimant's recourse is to file a motion for permission to file a late claim to Court of Claims Act § 10 (6).
|Claimant short name:||BARNETT|
|Footnote (claimant name) :|
|Defendant(s):||THE CITY UNIVERSITY OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||MARK HALBERSTAM, ESQ.|
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
BY: Cheryl Rameau, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||July 18, 2017|
|See also (multicaptioned case)|
This is a claim for personal injuries arising out of an assault and battery which allegedly occurred at or near the entrance of the Dolphin Cove dorms at the College of Staten Island, a division of the City University of New York. Claimant moves to amend the claim and dismiss defendant's eighth affirmative defense raised in the answer to the amended claim. Defendant opposes claimant's motion and cross-moves to dismiss the claim and the amended claim as being jurisdictionally defective.
On January 21, 2016, claimant e-filed his claim alleging that defendant negligently failed to prevent an assault and battery which occurred on November 16, 2015. The claim was personally served on January 27, 2016. Defendant e-filed an answer to the claim on February 17, 2016. On February 26, 2016, claimant e-filed an amended claim in which he alleged that his claim accrued on November 15, 2015. On April 18, 2016, defendant e-filed an answer to the amended claim in which it alleged by its eighth affirmative defense that the claim was jurisdictionally defective as it alleged an incorrect date of accrual which could not be cured by an amendment.
Court of Claims Act § 11 (b) requires in relevant part that "[t]he claim shall state the time when and place where such claim arose [and] the nature of same . . . ." A failure to strictly comply with the substantive pleading requirements of Court of Claims Act § 11 (b) constitutes a jurisdictional defect mandating dismissal of the claim, even though this may be a harsh result (Kolnacki v State of New York, 8 NY3d 277 ). The Court of Claims Act does not require that a defendant "ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski v State of New York, 1 NY3d 201, 208 ).
Claimant initially seeks leave to file an amended claim in order to correct the date of occurrence which was "inadvertently" listed in the original claim as November 16, 2015 to the correct date of November 15, 2015. Generally, leave to amend a pleading is to be liberally granted. Here, however, the original claim is jurisdictionally defective for failing to state the correct date of occurrence and, thus, must be dismissed (see Kolnacki v State of New York, 8 NY3d at 280-281; Robb v The State of New York, UID No. 2014-016-032 [Ct Cl, Marin, J., Aug. 18, 2014]; Charles B. v The State of New York, UID No. 2012-045-015 [Ct Cl, Lopez-Summa, J., June 4, 2012; Greene v The State of New York, UID No. 2009-045-012 [Ct Cl, Lopez-Summa, J., March 25, 2009]). Unfortunately, a jurisdictionally defective claim cannot be cured by an amendment (Hogan v State of New York, 59 AD3d 754 [3d Dept 2009)].
Accordingly, claimant's motion to amend the claim and dismiss the eighth affirmative defense in the answer to the amended claim, motion no. M-89846, is denied and defendant's cross motion to dismiss the claim and the amended claim, motion no. CM-89893, is granted and claim no. 127394 is dismissed as jurisdictionally defective. Claimant's recourse is to file a motion for permission to file a late claim pursuant to the provisions of Court of Claims Act § 10 (6).
July 18, 2017
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by the Court:
1. Notice of motion no. M-89846 and affirmation of Mark Halberstam, Esq. dated January 17, 2017, with annexed exhibits A-G;
2. Notice of cross motion no. CM-89893 and affirmation of Assistant Attorney General Cheryl Rameau dated February 8, 2017 in support of cross motion and in opposition to claimant's motion, with annexed exhibits A-E;
3. Reply affirmation of Mark Halberstam Esq. dated February 28, 2017, with annexed exhibits A-B.(1)
1. In his reply affirmation, claimant's counsel Mark Halberstam, Esq., states that on September 28, 2016, apparently during the course of discovery, defendant's counsel "forwarded a DVD [Exhibit B]". Attached to Mr. Halberstam's affirmation as Exhibit B is a copy of defendant's response to claimant's notice for discovery and inspection which in part refers to a DVD. No such DVD was sent to the Court to be included with claimant's motion papers. As a result, no DVD has been reviewed in preparation of this Decision and Order.