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Michael A. Davis v. State of New York

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


July 2, 2009

MICHAEL A. DAVIS,
CLAIMANT-APPELLANT,
v.
STATE OF NEW YORK,
DEFENDANT-RESPONDENT.

Appeal from an order of the Court of Claims (Renee Forgensi Minarik, J.), entered August 1, 2007.

964

CLAIM NO. 106740

PRESENT: SMITH, J.P., FAHEY, CARNI, PINE, AND GORSKI, JJ.

MEMORANDUM AND ORDER

The order dismissed the claim for lack of subject matter jurisdiction.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:

Claimant commenced this action seeking damages for injuries resulting from allegedly erroneous advice from two physicians at the correctional facility where he was incarcerated that no treatment was necessary for a lump in his upper abdomen. We agree with defendant that the Court of Claims properly dismissed the claim for lack of subject matter jurisdiction. "A court's lack of subject matter jurisdiction is not waivable"(Matter of Reis v Zimmer, 263 AD2d 136, 144, amended on renewal 270 AD2d 968; see Moulden v White, 49 AD3d 1250), and we conclude that the court properly dismissed the claim sua sponte (see generally Matter of Fry v Village of Tarrytown, 89 NY2d 714, 718). Pursuant to Court of Claims Act § 11 (b), "[t]he 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 . . . ." The requirements of section 11 (b) are "substantive conditions upon the State's waiver of sovereign immunity (Lepkowski v State of New York, 1 NY3d 201, 207), and noncompliance with the statute renders a claim jurisdictionally defective (see Kolnacki v State of New York, 8 NY3d 277, 280-281, rearg denied 8 NY3d 994; Lepkowski, 1 NY3d at 209). Here, the claim is jurisdictionally defective inasmuch as it fails to state an injury (see Lepkowski, 1 NY3d at 208).

Patricia L. Morgan Clerk of the Court

20090702

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