Peart v State of New York

[*1] Peart v State of New York 2005 NY Slip Op 52215(U) [10 Misc 3d 1070(A)] Decided on December 23, 2005 Ct Cl Nadel, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 23, 2005
Ct Cl

Brian Peart, an Infant, and Edwin Peart, Claimants,

against

State of New York, Defendant.



110870

S. Michael Nadel, J.

The claim alleges that the infant claimant Brian Peart suffered injuries as a result of the defendant's medical malpractice; Edward Peart, the infant's father, asserts a derivative cause of action for loss of services.

The defendant has moved for an order pursuant to CPLR Section 3211, Court of Claims Act Section 11, and subdivisions b and c of Sections 206.6 of the Uniform Rules for the Court of Claims, "dismissing the Claim for lack of subject matter jurisdiction." The claimants requested and received an adjournment of the motion, but have not submitted any answering affidavits.

The suggestion that a failure to comply with a rule of the Court is of jurisdictional significance is without merit (see Chalmers & Son, Inc. v State of New York, 271 App Div 699, 703 [3d Dept 1947], affd 297 NY 690, ["failure to comply with [rules of the Court of Claims] is not a jurisdictional defect"]). In any event, paragraphs 7 (a) and 16 and the final two paragraphs of the claim sufficiently allege items of damage, so the defendant's motion to dismiss the claim for failure to comply with subdivision b of the rule is denied.

With respect to the failure of the claim to include the date a notice of intention was served on the Attorney General (as required by subdivision c of the rule), the fact that the verified answer to the instant claim does not assert any objection to the timeliness of the claim or to the method of service of a notice of intention, coupled with the defendant's reference in this motion to a notice of intention, can only be understood to mean that a notice of intention was timely and properly served upon the defendant. The defendant's motion to dismiss the claim for failure to comply with subdivision c of the rule is denied (see Chalmers, supra , at 702 [in which the Court found the contention by the defendant that it was a "fatal defect" that the filed claim was typewritten, and not printed as required by rule, to be "lacking both in merit and good faith"]).

The sole remaining ground on which the defendant has moved to dismiss the claim is that the Court does not have subject matter jurisdiction because the claim fails to allege the total sum claimed, as required by Court of Claims Act § 11 (b). Instead, the claim alleges in paragraphs 10, 14 and 17 that "the amount of damages sustained . . . exceed [sic] the jurisdictional monetary

limits of all the lower courts in the State of New York, pursuant to CPLR 3017 (c)."

That ground of the defendant's motion is based upon the decision of the Court of Appeals in Lepkowski v State of New York (1 NY3d 201 [2003]) in which, according to the Attorney [*2]General, "the Court of Appeals reiterated that compliance with the specificity requirements of Court of Claims Act § 11 is a prerequisite to the Court of Claims' exercise of subject matter jurisdiction over a claim. The Court further reiterated that these requirements be strictly construed. . . . The Court held that a claim must provide specific information regarding each of the following: (1) the nature of the claim; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries claimed to have been sustained and (5) the total sum

claimed" (Affirmation in Support, Paragraph 6).

A review of relevant case law prior to Lepkowski demonstrates that no Court ever determined that the failure of a claim to include the total sum claimed was of jurisdictional significance. In fact, since the enactment of the Court of Claims Act (Chapter 922, Laws of 1920, recodified by Chapter 860, Laws of 1939), all of the appellate decisions which addressed the jurisdictional significance of any provision of the Act were decisions which involved those provisions of the statute which (1) impose time limitations, (2) set requirements concerning service, or (3) require that a claim must include the time at which the claim arose.[FN1]

At the time Lepkowski was decided, the information required to be in a claim had remained unchanged for nearly seventy years. As relevant here, when the State first waived its immunity from liability for the torts of its employees in 1929 (Chapter 467), it was not required that a claim include the total sum claimed. At the time, a claim was required to state "the time when, and the place where such claim arose and in detail the nature of the same, and of the items of damage alleged or claimed to have been sustained." The words "the total sum claimed" were added to the statute by Chapter 775 of the Laws of 1936, which included a number of amendments to the Court of Claims Act. There is nothing in the legislative history to indicate that the addition of those few words was intended, at the time, to be of any jurisdictional

significance.[FN2]

Since that time, the pertinent language, currently found in subdivision b of section 11 of the Court of Claims Act, has been: "The claim shall 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 and the total sum claimed."

In those few cases where Courts have addressed the absence of the total sum claimed, it was never suggested to be of jurisdictional import, and was in fact determined to be of no consequence (see Barski v State of New York, 43 AD2d 767, 768 [3d Dept 1973]; Otis Elevator Company v State of New York, 52 AD2d 380, 384 [3d Dept 1976]; Liberty Mutual Insurance Company v State of New York, 121 AD2d 694, 696 [2d Dept 1986]. Most recently, in Legall v State of New York (803 NYS2d 386, 391 [Ct Cl 2005]), the Court took note of "the long standing principle that the failure of a claim to demand a specific amount of damages is not a jurisdictional defect but rather a pleading deficiency that can be remedied by amendment of the [*3]claim." It would appear to be the defendant's position that the result of Lepkowski is to abrogate that long-standing principle.

Lepkowski involved two claims which had been brought by a total of 767 former and current state employees seeking overtime compensation pursuant to the Federal Fair Labor Standards Act. The claimants sought compensation for an unspecified number of overtime hours which 377 claimants had worked since July 1992, and which 390 had worked since April 1994. The claims did not include information concerning the times when and the places where they arose, nor did they provide any items of damage or the total sum claimed.

"These claims" the Court concluded "were required, at the very least, to specify the state agency or department for which each claimant worked; the primary work location for each claimant; those work weeks in which each claimant worked overtime; the actual number of hours of overtime worked by each claimant during these work weeks; and the total sum of damages sought by each claimant as unpaid overtime as of the date of filing" (Lepkowski, at 208-209).

From the foregoing, the defendant contends that Lepkowski held that the State has not waived its sovereign immunity from liability for any claim in which the written instrument constituting the claim does not state each and every one of the several elements required by subdivision b of section 11. As applied to the instant claim, the defendant's position is that the State has not waived its sovereign immunity for the sole reason that the claim does not include a number constituting the total sum claimed.

It is not unreasonable to suggest that the opinion of the Court of Appeals in Lepkowski is susceptible of an interpretation which could support the defendant's position. Judges of this Court have held, specifically relying upon Lepkowski, that the failure to include the total sum claimed in a claim deprives the Court of subject matter jurisdiction (see Shabazz v Commissioner Glenn S. Goord, as Commissioner of the NYS Dept of Correctional Services, Claim No. 109114, September 13, 2004, No.2004-009-53; Kolnacki v State of New York, 805 NYS2d 228 [Ct Cl 2005]; Cepeda v State of New York, Claim No. 110547, May 9, 2005, #

2005-009-028; Anwar v State of New York, 9 Misc 3d 1127(A), or stated that Lepkowski requires that result (see McCabe v State of New York, Claim No. 108925, June 24, 2004, #

2004-015-413; Signature Health v State of New York, Claim No. 107802, May 16, 2005, #

2005-015-014). Other Judges have come to a different conclusion (see Legall v State of New York, supra ; Stewart v State of New York, Claim No. 107914, September 24, 2004, #

2004-013-047).

Upon consideration, and having examined those decisions, this Court concludes that in the absence of any language in Lepkowski explicitly articulating the legal conclusion upon which the defendant relies, there is no sound basis to conclude that such was intended. There is no question but that Lepkowski did not say that a claim whose sole deficiency is the omission of the total sum claimed deprives the Court of Claims of subject matter jurisdiction. Nor is that conclusion necessarily implied by the Court's decision.

To accept the defendant's interpretation of Lepkowski as having held that the State's waiver of sovereign immunity is specifically conditioned upon any written claim "provid[ing] specific information regarding each" of the several components of a claim (Affirmation in Support, Paragraph 6), would treat an unarticulated and jurisprudentially unsupported departure from consistent Court of Claims practice as binding precedent. To conclude, based upon [*4]Lepkowski, that the mere failure of the instant claim to include the total sum claimed deprives the Court of subject matter jurisdiction, would create new law based upon an interpretation of language in Lepkowski which, in the context of well-established precedent and the facts in Lepkowski, is at most dictum.[FN3]

The only arguable support for the defendant's position is found in the following statement, with respect to the two claims in Lepkowski: "These claims were required, at the very least, to specify the state agency or department for which each claimant worked; the primary work location for each claimant; those work weeks in which each claimant worked overtime; the actual number of hours of overtime worked by each claimant during these work weeks; and the total sum of damages sought by each claimant as unpaid overtime as of the date of filing" (Lepkowski, at 208-209).

If the Court of Appeals actually intended that statement to mean that the State's waiver of sovereign immunity is specifically conditioned upon any written claim providing specific information regarding each of the several components of a claim, that meaning was not necessary in order to decide Lepkowski. As such it "is not authoritative. It is the part of an opinion that a later court, even if it is an inferior court, is free to reject" (US v Crawley, 837 F2d 291, 292 [7th Cir 1988]). It is not unreasonable to conclude that it "was not a fully measured judicial pronouncement, that it was not likely to be relied on by readers" ( Id, at 293).

That conclusion is made clear by the Court's unqualified characterization of what was already well-established law as "the guiding principle informing section 11(b)," namely: whether the pleading is "[sufficiently] definite to enable the State . . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances'" (Lepkowski, at 207, quoting Heisler v State of New York, 78 AD2d 767 [4th Dept 1980]).

By that standard the claims in Lepkowski did not satisfy the requirements of Court of Claims Act §11 (b), because (as the Court stated with respect to the claimants' contention that the State could easily ascertain from its personnel records exactly when and where each claim arose and how much their claims are worth), "as a matter of fact, the record does not establish that the State possesses detailed time records for claimants for the time periods covered by this litigation" (Lepkowski, at 208). The Court, citing Cobin v State of New York, supra , stated: "The Court of Claims Act does not require the State to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski, at 208).

There is nothing in the Court's opinion to suggest that had those claims included specific information as to where and when each of the 767 claimants had worked a specific number of overtime hours, that the absence of the total sum claimed alone would have rendered them insufficiently definite to enable the State to investigate.

Even if the Court's use of the phrases "substantive conditions" (Lepkowski, at 207) and "substantive pleading requirements" (Lepkowski, at 203, 208) to describe the several required elements of a claim set forth in subdivision b of section 11, or the characterization of the claims [*5]in Lepkowski as "jurisdictionally defective for nonconformity with section 11 (b)'s substantive pleading requirements" (Lepkowski, at 209) could, without more, be understood as conferring upon each of the several elements some jurisdictional import, to do so would amount to an unsupported and otherwise unexplained shift in historic Court of Claims practice.

Neither "substantive conditions" nor "substantive pleading requirements" had ever been used before, by any Court, to describe any of section 11 (b)'s pleading requirements, any portion of section 11 (b), or any other provision of the Court of Claims Act since it was first enacted in 1920. It is a fundamental maxim that when "words hav[e] a precise and well settled legal meaning in the jurisprudence of the state[, they] are to be understood in such sense when used in statutes, unless a different meaning is plainly indicated" (McKinney's Cons Laws of NY, Book 1, Statutes § 233, at 396). The pleading requirements in the statute have a well-settled meaning, having last been amended in 1936 (Chapter 775), although section 11 of the Court of Claims Act has been amended, in other respects, by the Legislature on seven separate occasions since then.

The actual source of what the Court of Appeals characterized as the guiding principle informing section 11 (b) is particularly helpful in arriving at this correct understanding of Lepkowski as it should be applied to the instant motion. Although the Court of Appeals quoted from Heisler v State of New York (78 AD2d 767 [4th Dept 1980]), which has also been cited repeatedly by Judges of the Court of Claims for that very principle, it was first articulated thirty-three years earlier in Chalmers & Son, Inc. v State of New York (271 App Div 699, 703 [3d Dept 1947], affd 297 NY 690).

It is readily apparent that the principle for which the Court of Appeals in Lepkowski cited Heisler is little more than a rearrangement of the same words in Chalmers. The Heisler Court, citing Chalmers, said the statute requires "a statement made with sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances" (Heisler, at 767). The Chalmers Court had said the statute requires "a statement of the matter referred to with sufficient definiteness to enable the State officials to make an investigation in order to determine if the claim should be adjusted without suit" (Chalmers, at 701). While both Heisler and Chalmers conclude that what is required is "substantial compliance" with the statute, in Heisler that phrase appears in the conclusion to an explanation of the specificity with which a claim must be stated (Heisler, at 767), while in Chalmers the same phrase is preceded by the following detailed construction of the statute, with specific reference to its purpose:

"The sufficiency of a claim is to be tested by the provisions and purpose of the statute. The object of the statute should be kept in mind and it should not be given a construction that will defeat the ends of justice. No narrow rule of construction should be applied to the wording of a claim. That construction which preserves a bona fide claim so that its merits may be passed upon by a competent tribunal is to be preferred as against one which rejects it without trial.

"The purpose of the provision requiring the presentation of a notice of intention to file a claim or the claim itself against the State as a condition precedent to the institution of a suit for damages was not to hamper and harass the claimant but to give the officers of the State prompt notice of the damages or injuries and the surrounding circumstances in order that the matter might be investigated and the State's liability determined. [*6]

"The statute should receive a reasonable construction and not one that unjustly deprives a suitor of the right to recover adequate compensation for the damages he has sustained"

(Chalmers, at 701).

Thus, it is clear that what the Court of Appeals in Lepkowski described as "the guiding principle informing section 11 (b)" is itself informed[FN4] by the fundamental purpose of the statute, as articulated in the foregoing statements in the Court's opinion in Chalmers, which was affirmed without opinion by a divided Court of Appeals.[FN5]

While the Chalmers decision is notable as a significant exception to a history of practice in the Court of Claims not inaptly characterized by one commentator as "draconian"[FN6] (Siegel, NY [*7]Prac § 235, at 394 [4th ed]), and no less accurately described by a former Presiding Judge of the Court of Claims as "a maze of strict jurisdictional limitations (sometimes characterized as roadblocks and criticized as impediments) . . . . [which] is frequently replete with procedural minutia and, unfortunately, often precludes the opportunity to rule on the merits of claims" (D'Aprice v State of New York, Claim Nos. 99693, 102068, March 16, 2001, #

2001-005-505), it has not been ignored by the Legislature. In 1993 (Chapter 405) the Legislature enacted subdivision 8 of section 10 of the Court of Claims Act, which codified the Chalmers procedure, although it was limited by the applicable statute of limitations. In 2001, after decisions of the Court of Claims had called into question the continued validity of the procedure (see Konviser v State of New York, 180 Misc 2d 174 [1999], which held that the procedure had been impliedly repealed; and Muller v State of New York, 184 Misc 2d 500 [2000], which held to the contrary), the Legislature enacted Chapter 205, which once again affirmed the availability of the procedure.

In the face of all of the foregoing, the interpretation of Lepkowski relied upon by the Attorney General brings to mind the words of Judge Bernard Meyer (albeit in dissent), in Jones v State of New York, supra , at 949-950: "Short of ritualistic incantations about jurisdiction' . . . it seems clear . . . that the Legislature never conceived that a claim such as plaintiff's would be barred on jurisdictional or any other grounds. . . . [W]e have recognized [citation omitted] the elastic and versatile definition and use of the term "jurisdiction"' . . . . [W]e should abandon our myopic concentration[[FN7]] on concepts not within any demonstrable legislative purpose . . . ."

While pertinent decisions of many appellate courts (including the Court of Appeals) as well as those of the Court of Claims (and even in some instances the content of legislative history), have on occasion conflated references to the scope of the State's waiver of sovereign immunity with undefined usage of the term "jurisdiction," less than ten years before it decided Lepkowski the Court of Appeals recalled a principle of construction first enunciated during the same year in which the Court of Claims Act was enacted, which distinguished between the two: "In Smith v State of New York, 227 NY 405, 409-410 [1920], rearg denied 229 NY 571, we stated as a general rule that the jurisdiction of the Court of Claims is to be construed broadly and waiver of immunity narrowly" (Brown v State of New York, 89 NY2d 172, 180 [1996]).

The Court in Brown, the most recent occasion on which the Court of Appeals addressed the substantive ambit of the State's waiver of sovereign immunity, continued: "The jurisdiction of the Court of Claims is today, as it was characterized in Smith, of the broadest character', but the Smith Court's interpretation of the waiver provision of section 264 was at odds with the public policy which seeks to reduce rather than increase the obstacles to recovery of damages, whether defendant is a private person or a public body [citations omitted]. Thus, the Legislature subsequently enacted a new statute to overcome the ruling in Smith" (Id).

That "new statute" was former section 12-a of the Court of Claims Act, enacted by [*8]Chapter 467 of the Laws of 1929, in which the State explicitly waived its immunity from liability for the torts of its employees. "That revision," according to the Court in Brown, "the substance of which was incorporated into the statute now before us [Court of Claims Act section 8], extended, supplemented and enlarged' the waiver to remove the defense of sovereign immunity for tort actions" (Id, citing Jackson v State of New York, 261 NY 134, 138 [1933], rearg denied 261 NY 637).

Jackson has been described in one historical survey of the Court of Claims as the

"primary case construing the waiver of immunity as expressly made in former Section 12-a" (Davison, Claims Against the State of New York, ch 11, at 75 ["Waiver of the State's Immunity for Liability Generally"]). The Court of Appeals in Jackson enunciated the essential character of the State's waiver of sovereign immunity:

"In the assumption of liability and the creation of a remedy to enforce a liability, heretofore absent by reason of the sovereignty of the tort feasor, the sovereign has not generously dispensed charity. Section 12-a constitutes a recognition and acknowledgment of a moral duty demanded by the principles of equity and justice. It includes only claims which appear to the judicial mind and conscience to be such as the Legislature may declare to be affected by a moral obligation and which the State should satisfy [citation omitted]. It declares that no longer will the State use the mantle of sovereignty to protect itself from such consequences as follow negligent acts of individuals. It admits that in such negligence cases the sovereign ought to and promises that in future it will voluntarily discharge its moral obligations in the same manner as the citizen is forced to perform a duty which courts and Legislatures have so long held, as to him, to be a legal liability. It transforms an unenforceable moral obligation into an actionable legal right and applies to the State the rule respondeat superior"

(Jackson, at 138).

That fundamental concept was subsequently reiterated and characterized as the "spirit" of the statute in Paige v State of New York (269 NY 352 [1936]), in which the Court construed the statute to encompass the agents as well as the employees of the State, concluding: "To exalt that circumstance to a ground of distinction in itself would be unnecessarily to blunt the beneficent purpose of the waiver by the State of its immunity. No rule of construction compels that course.

(Sipple v State, 99 NY 284, 289.)" (Paige, at 356).[FN8]

To conclude that the mere failure of the instant claim to include the total sum claimed [*9]deprives the Court of subject matter jurisdiction would not only, as stated previously, create new law based upon apparent dictum in Lepkowski, it would also permit the State to "blunt the beneficent purpose" of the statute (Paige, at 356) by "us[ing] the mantle of sovereignty to protect itself from such consequences as follow negligent acts of individuals" (Jackson, at 138), and would be "at odds with the public policy which seeks to reduce rather than increase the obstacles to recovery of damages, whether defendant is a private person or a public body" (Brown, at 180). Contrary to the Attorney General's interpretation of Lepkowski, the Court of Appeals' reiteration of the Heisler standard as the guiding principle informing section 11 (b) of the Court of Claims Act is consistent with that well-established public policy, derived as it is from "a reasonable construction [of the statute] and not one that unjustly deprives a suitor of the right to recover adequate compensation for the damages he has sustained" (Chalmers, at 701).

By that standard the instant claim, consisting of allegations of medical malpractice arising out of circumstances occurring at a specifically stated time, at a specifically named State hospital located at a specifically stated place, resulting in specified personal injuries, satisfies the requirements of Court of Claims Act §11 (b). The claim is sufficiently definite to enable the State to investigate it promptly and to ascertain its liability under the circumstances. With the information the claimants have provided in the claim, the absence of the total sum claimed could in no way impede an investigation by the defendant, nor has the defendant suggested that it could, or has.

The relief sought by the defendant is unsupported by controlling legal authority. Accordingly, the defendant's motion is denied. The Court has subject matter jurisdiction of the claim, and is prepared to entertain an application by the claimants to amend it (CPLR 3025[b]) to include the total sum claimed. [*10] Footnotes

Footnote 1: See e.g. Alston v State of New York, 97 NY2d 159, 163 [2001] ["Article II, section 10 of the Court of Claims Act could not be any clearer in conditioning the waiver of sovereign immunity on compliance with the time limitations for filing claims it sets forth. It states that [n]o judgment shall be granted in favor of any claimant unless such claimant shall have complied' with the time limitations established in that section [emphasis in original]"]; Lichtenstein v State of New York, 93 NY2d 911, 912 [1999] [claimant did not "commence the action in accordance with the requirements of Court of Claims Act § 10 (2) and (3), which prescribe the terms and conditions for bringing such claims against the State"]; Dreger v New York State Thruway Auth., 81 NY2d 721, 723-724 [1992] [addressing "the narrow question of what constitutes timely commencement" for the purposes of CPLR 205 (a), noted that "timely commencement requires literal compliance with the relevant statues governing notice" and holding that because the claimants did not satisfy the literal requirements of Court of Claims Act § 11 that the claim be served upon the Attorney General either personally or by certified mail with a return receipt requested "their actions are not timely commenced, and relief under CPLR 205 (a) is not available"]; Finnerty v New York State Thruway Authority, 75 NY2d 721 [1989] [Attorney General was not served with claim]; Smith v State of New York, 41 NY2d 1063, 1065 [1977] ["timeliness of filing is a jurisdictional prerequisite to making a claim"]; Welch v State of New York, 286 AD2d 496 [2d Dept 2001] [timeliness]; Bergmann v State of New York, 281 AD2d 731, 733 [3d Dept 2001] [failure to file an application for permission to file a late claim pursuant to section 10 (6) within the required time period is a jurisdictional defect]; Selkirk v State of New York, 249 AD2d 818, 819 [3d Dept 1998] ["The Court of Claims does not obtain jurisdiction to adjudicate a claim unless the claimant timely files a claim or a notice of intention to file a claim"]; Park v State of New York, 226 AD2d 153 [1st Dept 1996] [failure to specifically state in the notice of intention the time the claim accrued]; Mallory v State of New York, 196 AD2d 925, 926 [3d Dept 1993] ["compliance with Court of Claims Act §§ 10 and 11 pertaining to the timeliness of filing and service requirements respecting claims and notices of intention to file claims constitutes a jurisdictional prerequisite to the institution of a claim against the State"]; Bogel v State of New York, 175 AD2d 493, 494 [3d Dept 1991]["Service of the claims upon the Attorney-General by ordinary mail was insufficient to acquire jurisdiction over the State"]; Kaplan v State of New York, 152 AD2d 417, 418 [3d Dept 1989] ["filing and service requirements are jurisdictional prerequisites or conditions precedent to the commencement and maintenance of a claim against the State"]; Hernandez v State of New York, 144 AD2d 167 [3d Dept 1988] ["the late filing of a notice of intention to file a claim constitutes a nonwaivable defect, depriving the Court of Claims of jurisdiction ab initio to render judgment in favor of claimant"]; Baggett v State of New York, 124 AD2d 969 [4th Dept 1986]["The failure to serve a notice of intention to file claim upon the Attorney-General in the manner required by law is a fatal jurisdictional defect"]; Byrne v State of New York, 104 AD2d 782, 783 [2d Dept 1984] ["It is well established that compliance with sections 10 and 11 of the Court of Claims Act pertaining to the timeliness of filing and service requirements . . . constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State"], lv denied 64 NY2d 607; Lurie v State of New York, 73 AD2d 1006, 1007 [3d Dept 1980] ["The filing requirements of subdivision 2 of section 10 and section 11 of the Court of Claims Act are jurisdictional in nature"], affd 52 NY2d 849; Welch v State of New York, 71 AD2d 494, 498 [4th Dept 1979] ["it has been repeatedly held that the requirements of the Court of Claims Act as to the filing of claims must be strictly construed because the question of timeliness of filing is jurisdictional"], lv denied 50 NY2d 802; Jones v State of New York, 69 AD2d 936 [3d Dept 1979] ["Section 10 of the Court of Claims Act is a jurisdictional prerequisite to maintaining an action in the Court of Claims"], affd 51 NY2d 943; Perry v State of New York, 64 AD2d 799 [3d Dept 1978] [late service of notice of intention], lv denied 46 NY2d 710; Andriola v State of New York, 53 AD2d 966, 968 [3d Dept 1976] ["The requirements of section 10 of the Court of Claims Act concerning the timeliness of filing are jurisdictional"], lv denied 40 NY2d 803; DeMarco v State of New York, 43 AD2d 786 [4th Dept 1973] ["the timeliness of filing is a jurisdictional prerequisite to making a claim against the State"], affd 37 NY2d 735; Modern Transfer Co, Inc., v State of New York, 37 AD2d 756 [4th Dept 1971] ["all of section 10 of the Court of Claims Act is jurisdictional in character"]; Bommarito v State of New York, 35 AD2d 458, 459 [4th Dept 1971] ["all of section 10 is jurisdictional in character, particularly the timeliness of filing"]; Harper v State of New York, 34 AD2d 865 [3d Dept 1970] [Court concurred in the conclusion of the Court of Claims "that an allegation of the time at which the claim arose is an elementary procedural precept', the absence of which renders the claim jurisdictionally defective"; the Court of Claims had nonetheless permitted amendment of the claim]; Dimovitch v State of New York, 33 AD2d 146 [4th Dept 1969] [timeliness]; Crane v State of New York, 29 AD2d 1001, 1002 [3d Dept 1968]["the question of timeliness of filing is jurisdictional"]. See also Phillips v State of New York, 237 AD2d 590 [2d Dept 1997] [Court denied a motion to deem the filed claim a notice of intention and dismissed the claim because it failed "to comply with the requirements for a notice of intention"; the Court's decision provides no indication as to the nature of the defect]. The sole exception is one decision which pertained to a notice of intention which did not sufficiently describe where the claim arose to enable the State to investigate the claim promptly (Cobin v State of New York, 234 AD2d 498, 499 [2d Dept 1996], lv dismissed 90 NY2d 925, rearg denied 91 NY2d 849) in which the Court said that section 11(b) requires a "statement made with sufficient definiteness to enable the State to investigate the claim promptly . . . . Because the notice of intention fails to identify the place where such claim arose with sufficient specificity, we find that it fails to comply with the strictures of Court of Claims Act § 11 (b), and is therefore, jurisdictionally defective." The Court also stated: "contrary to appellants' contention, the State is not required to go beyond a claim or notice of intention in order to investigate an occurrence or ascertain information which should be provided pursuant to Court of Claims Act § 11'" (Cobin, at 499 [quoting from Grande v State of New York (160 Misc 2d 383, 386)]). Cobin has never been cited by any appellate court for the jurisdictional significance of the content of a claim. In fact, the extent to which the Court may have actually held that the content of the claim itself is of any jurisdictional import was called into question by the same court's decision, six months later, in Lufker v State of New York (239 AD2d 565). In Lufker, while finding that "the claimant's notice of intention failed to describe the location of the incident with sufficient specificity to satisfy the requirements of Court of Claims Act §11" the Court nonetheless reversed the denial by the Court of Claims of a motion to have the notice of intention treated as a claim because the " report of incident' completed by the State University of New York campus police shortly after the incident occurred provided the State of New York with timely actual notice of the exact location of the incident" (at 565-566).

Footnote 2: The principal purpose of the statute was to reduce the number of private claim bills in the Legislature by clarifying various provisions of the Act. Among its provisions, the Chapter brought various time limitations into one section, created a procedure for the Court to permit late claims, and extended the time to commence a tort claim from 60 to 90 days. A three page memorandum by the then Presiding Judge of the Court of Claims describes provisions of the bill without any reference to the addition of the words "total sum claimed," concluding that the bill "will clarify inconsistencies now existing and will simplify in some respects the procedure in the Court and . . . therefore it will be of great benefit to the Court and to all parties interested in claims against the State" (Bill Jacket, L 1936, ch 775, at 6). A letter from Nathan R. Sobel, Secretary to the Assembly Minority Leader, recommending approval of the bill, describes extension of the time within which to file a tort claim as "the only substantive change in the law made by this bill" (Id, at 8). It also comments upon the provisions which brought time limitations into one section, and those which established a late claim procedure, and notes that "there are several unimportant changes made in other sections of the bill" (Id). Apparently the addition of the words "total sum claimed" was one of those changes.

Footnote 3: Dictum has been defined as "a statement in a judicial opinion that could have been deleted without seriously impairing the analytical foundations of the holding that, being peripheral, may not have received the full and careful consideration of the court that uttered it" (Sarnoff v American Home Products Corp., 798 F2d 1075, 1084 [7th Cir 1986]).

Footnote 4: The use of the word "informing" by the Court of Appeals in Lepkowski is instructive. "To inform" is commonly understood to mean "to give character or essence to" and "to be the formative principle of" (Webster's Third New International Dictionary, 1160 [2002]).

Footnote 5: Although Chalmers has not since been cited by the Court of Appeals, no subsequent decision of that Court, or of any other appellate court, could be understood as expressing disapproval of the case or its holding. In fact, on at least two occasions after Chalmers was decided, appellate courts have specifically rejected the Attorney General's contention that it should be ignored as authority for the procedure it established. In Chalmers, the Court had held that a properly and timely served notice of intention could subsequently be treated as a claim, even after the expiration of the applicable statute of limitations. Decisions subsequent to Chalmers held the procedure applicable even when the notice of intention did not include allegations of items of damage or injuries, or the total sum claimed, neither of which is required by the Court of Claims Act to be in a notice of intention (see Otis Elevator Company v State of New York, supra ; Barski v State of New York, supra ). Nearly forty years after Chalmers, the Court in Liberty Mutual Insurance Company v State of New York (121 AD2d 694, 695-696 [2d Dept 1986]) stated: "Although the defendant argues that the Chalmers case, which granted a motion to convert a notice of intent into a claim after the expiration of the then applicable limitations period, is obsolete' and of doubtful precedential value', we note that the doctrine has been consistently recognized in the Appellate Divisions, Third and Fourth Departments [citations omitted]. Moreover, the Court of Appeals has made no directly authoritative or controlling statement which could be construed as expressing disapproval of the case and its holding. Therefore, the Chalmers case is still valid precedent." And again two years later, in Carnesi v State of New York (140 AD2d 912, 913 [3d Dept 1988]) the same Court which had decided Chalmers stated: "On appeal, the State argues that Chalmers should be overruled . . . . We note first that since Chalmers was affirmed by the Court of Appeals, that court, not this one, should pass on the continued validity of the Chalmers decision. Additionally, we are unconvinced that Chalmers is in conflict with the more recent Court of Appeals pronouncements." In specific response to the Attorney General's argument that "the Court of Appeals requires strict compliance with notice of claim statutes (see e.g. Parochial Bus Sys v Board of Educ [citation omitted]" the Carnesi Court noted that "those cases holding that the time and service requirements of notice statutes must be strictly complied with [citations omitted] are inapplicable to a Chalmers case factual pattern, which is more aptly described as a liberal construction of pleadings decision" (Id).

Footnote 6: Defined in Black's Law Dictionary, 7th edition, as: "(Of a law) harsh; severe."

Footnote 7: "[Footnote 3 in original] (Cardozo, Growth of the Law, at p 66: Judges march at times to pitiless conclusion under the prod of a remorseless logic which is supposed to leave them no alternative. They deplore the sacrificial rite. They perform it, none the less, with averted gaze, convinced as they plunge the knife that they obey the bidding of their office. The victim is offered up to the gods of jurisprudence on the alter of regularity.')."

Footnote 8: In Sipple v State of New York, (54 Sickels 284, 99 NY 284 [1885]) the Board of Claims had found the State liable for the negligence of a canal lock-tender employed by the State. At the time the pertinent statute provided that the State could be held liable for "the negligence or conduct of any officer of the State having charge" of the canals (section 1, chapter 321, Laws of 1870). On appeal, the Attorney General argued that the word "officer" did not encompass a canal lock-tender. The Court of Appeals, which affirmed the Board of Claims, said: "It is unquestionably the duty of all State officers to scrutinize closely the authority under which claims are made upon the public treasury, and defeat such as are not clearly warranted by law; but it is unbecoming the dignity and honor of a great State to attempt to evade the fulfillment of its obligations according to their spirit and meaning, or to stint the payment of a proposed indemnity by a constrained or illiberal construction of the language in which its promise is framed. The act is broad and comprehensive in its language and should be construed in the spirit which inspired its enactment" (Sipple, at 288-289).