Liberty Mut. Ins. Co. v. State

• Decision Date: 29 November 2010
• Docket Number: No. 115705.,115705.
• Citation: 912 N.Y.S.2d 861,30 Misc.3d 693
• Parties: LIBERTY MUTUAL INSURANCE COMPANY a/s/o Lisa Sookhoo, Claimant, v. The STATE of New York, Defendant.
• Court: New York Court of Claims

912 N.Y.S.2d 861
30 Misc.3d 693

LIBERTY MUTUAL INSURANCE COMPANY a/s/o Lisa Sookhoo, Claimant,
v.
The STATE of New York, Defendant.

No. 115705.

Court of Claims of New York.

Nov. 29, 2010.

912 N.Y.S.2d 862

Carman, Callahan & Ingham, LLP, by Susan C. Carman, Esq., and Christopher Persad, Esq., for Claimant.

Andrew M. Cuomo, Attorney General, by John M. Hunter, AAG, for Defendant.

ALAN C. MARIN, J.

30 Misc.3d 694

In this claim, Liberty Mutual Insurance Company alleges that on April 29, 2008, a Chevy van owned by the State and operated by an employee of the New York State Office of Mental Retardation and Developmental Disabilities ¹ struck the 2006 Honda of claimant's subrogor, Lisa Sookhoo. Claimant moves for leave to serve an amended verified claim. Defendant cross-moves to dismiss on the ground that the claim fails to comply with § 11 of the Court of Claims Act (the "Act") by not adequately describing-or more precisely, by misstating-the location of the accident, as well as by not adequately describing the manner in which it occurred.

Liberty Mutual seeks to make two changes to the claim, the first of which relates to the location of the accident. A New York City Police Report (MV-104AN), which was annexed to the notice of intention, indicates that the accident occurred at the intersection of 206th Street and 104th Avenue in Queens, and this is the location set forth in the claim.² Liberty Mutual states that it has learned that the accident actually occurred at 207th Street and 104th Avenue, and it thus seeks to amend the claim to refer to 207th Street instead of 206th Street.

Second, claimant seeks to add the following sentence regarding the occurrence of the accident: "Defendant had a stop sign and failed to stop and yield to the Plaintiff Subrogor's vehicle, who had the right of way."

* * *

Section 11(b) of the Act requires that a claim arising from personal injury state "the time when and place where such claim arose, the nature of same, [and] the items of damage or injuries claimed to have been sustained ..." A failure to set forth any of the foregoing items renders a claim jurisdictionally defective. Kolnacki v. State of New York, 8 N.Y.3d 277, 832 N.Y.S.2d 481, 864 N.E.2d 611 (2007).

In Kolnacki, defendant's motion to dismiss was granted because claimant failed to plead the "total sum claimed" as required by § 11(b) as it existed at the time. The Legislature soon thereafter amended the statute to exclude that

30 Misc.3d 695

item, the result of which was that pleading damages in the Court of Claims more closely matched the practice for Supreme Court. Chapter 606 of the Laws of 2007...