| Weaver v State of New York |
| 2011 NY Slip Op 01834 [82 AD3d 878] |
| March 8, 2011 |
| Appellate Division, Second Department |
| Sherrie Weaver, Claimant, and David Sheps,Appellant, v State of New York, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany, N.Y. (Andrea Oser, Peter H. Schiff, andKathleen M. Arnold of counsel), for respondent.
In a claim to recover damages for violations of Mental Hygiene Law §§ 29.23and 33.07 (e), in which class action claims were asserted, the claimant David Sheps appeals froman order of the Court of Claims (Ruderman, J.), dated January 14, 2010, which granted thedefendant's motion pursuant to CPLR 3211 (a) (2) to dismiss the class action claims asserted inthe amended claim.
Ordered that the order is affirmed, with costs.
Court of Claims Act § 11 (b) provides that a claim filed in the Court of Claims "shallstate the time when and place where such claim arose, the nature of same, the items of damage orinjuries claimed to have been sustained and, except in an action to recover damages for personalinjury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed."
The main issue presented on this appeal is whether, in a class action brought in the Court ofClaims, each class member must satisfy the substantive pleading requirements of Court ofClaims Act § 11 (b) and be a named claimant in a filed claim.
The weight of Court of Claims authority supports the conclusion reached by the Court ofClaims in this case, that class actions brought in the Court of Claims must satisfy all of thejurisdictional requirements set forth in section 11 (b) and that each member must be a namedclaimant in a filed claim (see Matter of Arroyo v State of New York, 12 Misc 3d1197[A], 2006 NY Slip Op 51606[U] [2006]; Woolley v State of New York [Ct Cl, July2, 2001, claim No. 103781], affd on other grounds 299 AD2d 699 [2002]; Partridge vState of New York [Ct Cl, May 31, 2000, claim No. 90710]; Brown v State of NewYork [Ct Cl, Aug. 21, 1997, claim No. 86979], mod on other grounds 250 AD2d314, 319-320 [1998]; cf. Bertoldi v State of New York, 164 Misc 2d 581 [1995], affdon other grounds 275 AD2d 227 [2000]). This conclusion is consonant with the principlethat "nothing less than strict compliance with the jurisdictional requirements of the Court ofClaims Act is necessary" (Kolnacki vState of New York, 8 NY3d 277, [*2]281 [2007]).Indeed, "[a] claim against the State is allowed only by the State's waiver of sovereign immunityand in derogation of the common law" (Thomas v State of New York, 57 AD3d 969, 970 [2008], citingLichtenstein v State of New York, 93 NY2d 911, 913 [1999]; see Dreger v New YorkState Thruway Auth., 81 NY2d 721, 724 [1992]). The State's waiver of sovereign immunityis not absolute. Rather, it is conditioned upon a claimant's compliance with the limitations setforth in article 2 of the Court of Claims Act, which includes section 11 (b) (see Court ofClaims Act § 8; Lepkowski vState of New York, 1 NY3d 201, 206 [2003]), and "it is for the Legislature, not thisCourt, to set the terms of the State's waiver of immunity" (Kolnacki v State of New York,8 NY3d at 281).
In light of the foregoing, the Court of Claims properly concluded that it "cannot, without alegislative mandate to the contrary, entertain a claim which fails to satisfy all of the pleadingrequirements set forth in the Court of Claims Act." Since the class claims in this case fail tosatisfy all of the substantive pleading requirements set forth in Court of Claims Act § 11(b), the Court of Claims properly granted the State's motion pursuant to CPLR 3211 (a) (2) todismiss those claims (id.; Lepkowski v State of New York, 1 NY3d 201 [2003]).
The parties' remaining contentions are without merit. Angiolillo, J.P., Chambers, Austin andMiller, JJ., concur.