New York State Court of Claims

New York State Court of Claims

PROVENZANO v. THE STATE OF NEW YORK, #2000-016-101, Claim No. 99202, Motion Nos. M-62081, CM-62343


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Alan C. Marin
Claimant's attorney:
Robert F. Danzi
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Diane G. Temkin
Third-party defendant's attorney:

Signature date:
November 30, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


At issue are contending motions addressed principally to the threshold issue of whether claimant Carmelo Provenzano lacked the capacity to sue and thus that his wife, Catherine, derivatively lacked standing.[1] The underlying action alleges negligence and medical malpractice by the State University Health Center of Brooklyn (Downstate Hospital) beginning on or about January 15, 1998 when Carmelo Provenzano was admitted for coronary bypass surgery.

The claim was filed October 26, 1998. Subdivision a of ¶ 4 describes claimant's[2] injuries as a:

rupture of an aortic by-pass graft, diffuse anoxic ischemia encephalopathy with resultant neurologically caused conditions including parestherias, paralysis, speech and motor defects, atrophy of the brain and muscular atrophy. Inasmuch as Claimant is still under continuing medical care and therapy the full extent of claimant's injuries are presently unknown.

A year later, in a list of Provenzano's injuries, the bill of particulars included "Brain damage" and "Comatose condition," but also "Fear, [fright] and suffering" (October 18, 1999, ¶9.a).

Depositions were scheduled pursuant to my Preliminary Conference Order signed at a conference conducted on January 20, 2000 (cl notice of motion, exh B). According to a letter prepared by defendant's counsel, what happened was as follows:

On March 31, 2000, I appeared for claimants' depositions. I was told that only the wife would be deposed. Mr. Provenzano is incapacitated by disability. According to Mrs. Provenzano and her attorneys, Mr. Provenzano has been unable to speak or communicate in any way since before this claim was filed." [Def cross-motion, exh B, p.1].

By motion filed July 24, 2000, claimants seek, inter alia, to substitute Catherine Provenzano as a guardian for her husband who had just been adjudicated an incompetent in Supreme Court, Kings County. Attached as an exhibit were the certified minutes of Justice Leonard Scholnick's April 17, 2000 hearing on Catherine Provenzano's application; the Justice's June 16, 2000 Order was submitted with a subsequent submission of the claimants.[3]

For its part, defendant cross-moved to amend its answer to reflect claimant's incapacity and accordingly to dismiss the basic claim and the derivative spousal action. Paragraph 6 of the cross-motion contends:

Being aware that the claimant Carmelo Provenzano lacked the capacity to sue, claimants brought this action for alleged personal injuries and medical malpractice ...resulting in alleged "significant brain damage" to Carmelo Provenzano.

This excerpt is from paragraph 4 of the affirmation of Mona Engel, attorney for claimant, dated July 20, 2000 and appended to her notice of motion, in which she states that on "January 15, 1998, he [Carmelo Provenzano] was transferred to Downstate for performance of triple bypass on January 16, 1998. Subsequent to surgery, the aortic graft ruptured, resulting in anoxia, coma and significant brain damage."

[* * *]

The facts of Piasecki v Rashib, 203 AD2d 443, 444, 610 NYS2d 874, 875 (2d Dept 1994) are functionally the same, and in fact, stronger from the claimants' vantage because the comatose condition of Helen Piasecki was presented as an undisputed fact. Piasecki became comatose on September 11, 1988, but was not declared incompetent until March 6 of the following year, some three months after she commenced her lawsuit, a set of circumstances which did not interfere with plaintiff's right to file a lawsuit:

It is well established that "a person of unsound mind but not judicially declared incompetent may sue or be sued in the same manner as any ordinary member of the community" (Sengstack v Sengstack, 4 NY2d 502, 176 NYS2d 337... [additional case citations omitted].[4]

In Mitsinicos v New Rochelle Nursing Home, 258 AD2d 630, 631, 685 NYS2d 758, 759 (1999), the Second Department recited the principle it quoted above from the Court of Appeals in Sengstack. However, in response to the specific procedural history of that case, the appellate court relied upon a somewhat easier standard for a defendant to satisfy: viz., the defendant could not gain the dismissal of a medical malpractice suit for plaintiff's incapacity unless it could establish by clear and convincing evidence that the plaintiff was incompetent at the time the lawsuit was commenced; its doctor's affidavit "concerned only plaintiff's present and future incompetence to maintain the action..." 258 AD2d at 631, 685 NYS2d at 759. In any event, the defendant in the case at bar offers no medical evidence via a physician's affidavit.

Professor Siegel's commentary for CPLR 3211(a) on the capacity to sue (¶3) observes that "in many ... instances the operation of paragraph 3 is obscure. The problem is not a significant one, however, because it will often be found that when an arguable objection exists under paragraph 3, the objection of paragraph 7, failure to state a cause of action, will also be applicable." Practice Commentary to McKinney's vol 7B, §§3201-3400, p. 23 (1992 ed). Such is not the circumstance of the Provenzanos' lawsuit. Defendant cites Siegel to the effect that a person without "any color of right" cannot bring an action, but that language is part of the larger: "Suppose ... a person without any color of right presumes to bring an action on behalf of a trust. He is not a trustee and has no basis for a claim to such position. He lacks the capacity to sue under paragraph 3, but his complaint would also fail to state a cause of action. A cause of action stated to belong to a trust could in such case not possibly belong to him" (id.).


In view of the foregoing, IT IS ORDERED that the motion (M-62081) to substitute Catherine Provenzano for claimant Carmelo Provenzano and correspondingly amend the caption is granted; defendant's cross-motion (CM-62343) to dismiss the claim of both claimants on the grounds of the incapacity of Carmelo Provenzano is denied. Those portions of motion M-62081 that seek to compel discovery and strike defendant's answer are denied; such disclosure matters are more properly the subject of a future conference.

November 30, 2000
NYC, New York

Judge of the Court of Claims

[1] Along with the claim, the following were reviewed: claimants' Notice of Motion together with an Affirmation and two exhibits (missing in my copy is page 2 of exhibit A, Justice Scholnick's minutes, although his Order was submitted in the papers opposing defendant's Cross-Motion); defendant's Notice of Cross-Motion with an Affirmation and three exhibits; claimants' Affirmation in Opposition to the Cross-Motion with one exhibit and defendant's Sur-Reply.
[2] In discussing injuries, the references herein will be to Carmelo Provenzano and to "claimant" in the singular.
[3] Their affirmation in opposition to the cross-motion filed September 15, 2000, which the defendant in its sur-reply filed September 27, 2000 (¶¶ 3 & 4) objects to as untimely.

[4] Nor did the fact that a guardian ad litem was appointed for the limited purpose of representing Piasecki in a conservatorship proceeding held on November 23, 1988 constitute a judicial declaration of independence or interfere with plaintiff's right to sue in her own name. See also Bryant v Riddle, 259 AD2d 399, 687 NYS2d 108 (1st Dept 1999).