DAVIS v. STATE 106740 (2009)

 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 A.D.2d 136, 144, 700 N.Y.S.2d 609, amended on renewal 270 A.D.2d 968, 710 N.Y.S.2d 259;  see Moulden v. White, 49 A.D.3d 1250, 856 N.Y.S.2d 329), and we conclude that the court properly dismissed the claim sua sponte (see generally Matter of Fry v. Village of Tarrytown, 89 N.Y.2d 714, 718, 658 N.Y.S.2d 205, 680 N.E.2d 578).   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 N.Y.3d 201, 207, 770 N.Y.S.2d 696, 802 N.E.2d 1094), and noncompliance with the statute renders a claim jurisdictionally defective (see Kolnacki v. State of New York, 8 N.Y.3d 277, 280-281, 832 N.Y.S.2d 481, 864 N.E.2d 611, rearg. denied 8 N.Y.3d 994, 838 N.Y.S.2d 835, 870 N.E.2d 153;  Lepkowski, 1 N.Y.3d at 209, 770 N.Y.S.2d 696, 802 N.E.2d 1094).   Here, the claim is jurisdictionally defective inasmuch as it fails to state an injury (see Lepkowski, 1 N.Y.3d at 208, 770 N.Y.S.2d 696, 802 N.E.2d 1094).

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

MEMORANDUM: