New York State Court of Claims

New York State Court of Claims

FERNANDO v. THE STATE OF NEW YORK, #2000-011-536, Claim No. 101136, Motion No. M-61403


Synopsis


Defendant's motion to dismiss this claim on the grounds that no cause of action is stated and the claim was not timely served, is granted.

Case Information

UID:
2000-011-536
Claimant(s):
ANDON FERNANDO
Claimant short name:
FERNANDO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101136
Motion number(s):
M-61403
Cross-motion number(s):

Judge:
Thomas J. McNamara
Claimant's attorney:
Allen S. Gold, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Glenn C. King, Esq., of counsel)
Third-party defendant's attorney:

Signature date:
May 25, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Defendant has moved to dismiss this claim on the grounds that no cause of action is stated and the claim was not timely served. The claim alleges negligence in the medical care provided to Claimant. Under Court of Claims Act §10(3), a claim based upon an unintentional tort such as is alleged here must be filed within ninety days of accrual unless a notice of intention is served within that time and then the claim may be filed within two years of accrual.

The claim arises from medical treatment provided to Claimant on July 1, 1999 at Albany Medical Center.  The claim was served on Defendant on September 30, 1999; the ninety-first day after accrual. The claim therefore, is untimely and the court is without personal jurisdiction (Thomas v State of New York, 144 AD2d 882). In addition, the claim is based entirely upon allegations of negligence on the part of Albany Medical Center and inasmuch as there is no allegation of control on the part of the State, the Defendant cannot be held liable for the negligence alleged (Rivers v State of New York, 159 AD2d 788). Finally, Claimant has not opposed the motion. Accordingly, the motion is granted and the claim is dismissed.


May 25, 2000
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims



Papers Considered:

1. Notice of Motion dated February 29, 2000.
2. Affirmation of Glenn C. King, Esq., dated February 29, 2000.