Claimant, administrator of the Estate of Billy Curl Davis (decedent), an inmate incarcerated at the time of his death, moves for permission to treat a "timely-filed" notice of intention ^[FN1] as a claim, pursuant to Court of Claims Act § 10 (8) (a). This motion is made in light of the Court of Appeals' decision in Kolnacki v State of New York (8 NY3d 277 [2007]), in which that Court held that a claimant's failure to include a total sum of monetary damages in the claim, as required by Court of Claims Act § 11 (b), constituted a jurisdictional defect. The claim in this case failed to include such a total sum, initially necessitating such a motion. Defendant State of New York (defendant) cross-moves for dismissal of the claim for failure to state a total sum claimed.

While the motion and cross motion have been pending, however, the requirement set forth in Court of Claims Act § 11 (b) that a total amount claimed be set forth in the claim has been amended (L 2007, ch 606) to provide that a sum certain is not required to be stated in the claim in personal injury, medical, dental or podiatric malpractice, or wrongful death suits. The amended law is applicable by its terms to claims pending on the effective date of the law, and is thus dispositive of claimant's motion herein.

Because the underlying claim in this action sounds in wrongful death and medical [*2]malpractice, as well as negligence, a sum certain is not required to be stated in the claim pursuant to the amended provisions of Court of Claims Act § 11 (b).

However, it must be noted that to the extent that claimant may seek to recover for decedent's conscious pain and suffering (which is not at all clear upon review of the claim), such recovery is barred by the time limitations set forth in the Court of Claims Act.^[FN2] It is well-settled that Court of Claims Act § 10 (2), which provides that a claim against the State for wrongful death must be filed within 90 days after the appointment of a personal representative of decedent, does not apply to an action for decedent's pain and suffering (Kaplan v State of New York, 152 AD2d 417 [1989]). Rather, the applicable provisions for a cause of action for conscious pain and suffering based on defendant's negligence and/or malpractice are set forth in Court of Claims Act § 10 (3), which requires that either a claim be filed and served or a notice of intention be served for such cause of action within 90 days of the accrual of the claim, which in this instance would be decedent's date of death on December 28, 2003. Because neither document was filed and/or served within 90 days of that date, this cause of action is untimely. Given that the notice of intention itself was untimely with respect to that cause of action, treating it as a claim pursuant to claimant's motion still does not render a cause of action for conscious pain and suffering timely. Additionally, a motion for permission to file a late claim pursuant to Court of Claims Act § 10 (6) for decedent's pain and suffering incurred as a result of defendant's negligence is untimely as well, as the three-year statute of limitations for that cause of action has expired (CPLR 214 [5]).^[FN3]

Moreover, because the limitations period for a derivative cause of action is governed by the underlying cause of action (see Quinto v New York City Tr. Auth., 7 AD3d 689 [2004]; Kramer v Twin County Grocers, 151 AD2d 722 [1989]), claimant's individual cause of action for loss of consortium based upon decedent's pain and suffering is also untimely.^[FN4] Furthermore, a cause of action for loss of consortium does not exist with respect to a cause of action for wrongful death (Liff v Schildkrout, 49 NY2d 622 [1980]). As a result, claimant has failed to state any timely derivative cause of action, and her individual cause of action must be dismissed.

Accordingly, claimant's Motion No. M-73341 for permission to treat the notice of intention as a claim is denied. Defendant's Cross Motion No. CM-73364 to dismiss the claim for failure to state a sum certain is denied. Claimant's cause of action on behalf of the estate for pain [*3]and suffering and her individual derivative cause of action are both dismissed as untimely.