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THE CLAIM WAS NOT JURISDICTIONALLY DEFECTIVE FOR FAILURE TO SPECIFICALLY ALLEGE LOST WAGES AS PART OF THE DAMAGES IN THIS PERSONAL INJURY ACTION, THE DISSENT DISAGREED AND WOULD HAVE VACATED THE AWARD FOR LOST WAGES (FOURTH DEPT).

The Fourth Department affirmed the award of money damages to claimant for personal injury. The claim did not specifically request lost wages as damages. The majority held the claim was not jurisdictionally deficient and the specific items of damage need not have been spelled out. The dissenter disagreed and argued the award for lost wages should be vacated:

Contrary to defendant’s contention, the court did not lack subject matter jurisdiction with respect to damages for past and future lost wages inasmuch as the facts alleged by claimant “were sufficient to apprise [defendant] of the general nature of the claim and to enable it to investigate the matter” … .

The plain language of the statute requires a claimant to specify “the items of damage or injuries claimed to have been sustained” and, “except in[, inter alia,] action[s] to recover damages for personal injury . . . , the total sum claimed” (Court of Claims Act § 11 [b]). Contrary to the view of our dissenting colleague, a natural reading of the statute requires a claimant to specify the items of damage to property or injuries to a person for which the claimant seeks compensation. Here, claimant sufficiently specified the nature of the claim, the time when and the place where the claim arose, and the injuries claimed to have been sustained, i.e., “injuries to his shoulder, bicep, and elbow” … . Inasmuch as this is an action for damages for personal injury, claimant was not required to specify, in total or itemized by category, his claimed items of damage … . Damages sought by claimant for medical expenses or lost wages are matters for the bill of particulars. Donahue v State of New York, 2019 NY Slip Op 05948, Fourth Dept 7-31-19

 

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