New York State Court of Claims

New York State Court of Claims

HARRIS v. THE STATE OF NEW YORK, #2000-018-015, Claim No. 101263, Motion No. M-60724 and M-60735


Synopsis


Defendant brings a motion to dismiss for the failure to set forth a specific date of accrual in the claim. The claim sets out a six-month span of time within which defendant allegedly improperly prescribed and administered prescription medication. The Court found that the claim failed to meet the requirements of Court of Claims Act §11(b) and as a result must be dismissed.

Case Information

UID:
2000-018-015
Claimant(s):
JAY HARRIS The Court has sua sponte amended the caption to reflect the only proper defendant.
Claimant short name:
HARRIS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court has sua sponte amended the caption to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101263
Motion number(s):
M-60724 and M-60735
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
JAY HARRIS, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 19, 2000
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant brings this motion to dismiss the claim for lack of subject matter jurisdiction and/or lack of personal jurisdiction. Claimant opposes the motion and seeks an order dismissing the affirmative defenses set forth in defendant's verified answer. Claimant has also filed a motion seeking to be granted poor person status. The Court has considered the following documents:

Motion No. M-60724

Notice of Motion to Dismiss Claim...................................................1

Affirmation of Joel L. Marmelstein, Esq., Assistant

Attorney General with Exhibits A and B attached thereto......2

Affidavit of Jay Harris in opposition, with request for an order

Dismissing defendant's affirmative defenses..........................3

Reply Affirmation of Joel L. Marmelstein, Esq., Assistant

Attorney General with Exhibit A attached thereto.................4


Motion No. M-60735


Notice of Motion to Proceed as a Poor Person.................................5

Affidavit of Jay Harris in support..................................................6

Affirmation of Joel L. Marmelstein, Esq., Assistant

Attorney General in opposition.............................................7

Motion No. M-60724

Defendant asserts that the claim should be dismissed because it fails to set forth the date the claim arose as required by Court of Claims Act §11(b). The claim was filed with the clerk of the Court on October 19, 1999 and served upon the attorney general on October 18, 1999. Defendant filed a verified answer on November 5, 1999 asserting several affirmative defenses, including as the third defense, that the claim fails to state the date of accrual of the cause of action pursuant to Court of Claims Act §11, and therefore the Court does not have jurisdiction over the claim.

The Claim starting with the "Second" paragraph alleges: "[t]hat on or about February of 1999, thereafter and to date, plaintiff [sic] is a patient under the alleged professional care of the defendants. Third: That on or about February 1999, thereafter and to date, the defendant undertook and endeavored to, and did, advise and prescribe and treat plaintiff [sic] for back aliments [sic]. Fourth: That thereafter and in and during the months of March, April, May, June, July, and August 1999, the defendant undertook and endeavored to prescribe, and did prescribe certain medication for plaintiff's [sic] back aliments [sic]." No other dates are provided. The claim seeks damages for defendant's medical malpractice and negligence in dispensing medication, failing to advise claimant of the potential side effects, failing to properly advise and instruct claimant in how to administer the medication, for products liability, and breach of warranty. Defendant argues that there must be a date on which claimant was first given the prescription, a first date on which he became ill as a result of taking the prescription, and a first date on which he complained to medical personnel. The fact that no such date is set forth makes the claim, as the argument goes, jurisdictionally defective.

Claimant in opposition argues that he served a notice of intention upon the attorney general on August 19, 1999, which adequately advised defendant of the alleged accrual date of May 31, 1999. Claimant refers to the notice of intention as "Exhibit A" which was supposed to be attached to his affidavit in opposition along with the proof of service on the attorney general. No Exhibit A is attached to claimant's affidavit.[1] Claimant, apparently in response to this motion, filed an amended claim on December 2, 1999 which included the accrual date. Claimant asserts that this corrects any problem with the original claim.

Court of Claims Act §11(b) requires that the claim state the time when and the place where the claim arose, the nature of the claim, the items of damages or injuries and the total amount claimed. A failure to adequately set forth the information required has been held to be a jurisdictional defect, which cannot be cured by amendment. (See, Buckles v State of New York, 221 NY 418; Harper v State of New York, 34 AD2d 865; Schmidt v State of New York, 181 Misc 2d 499; Grande v State of New York, 160 Misc 2d 383, 385; but see, Rodriguez v State of New York, 153 Misc 2d 363) Furthermore, even if an amendment as of right could cure the alleged defect, claimant has failed to serve the attorney general with a copy of the amended claim within the time frame set forth in CPLR 3025 (a), as a result any such amendment requires a motion be made to the Court. Accordingly, if the claim filed on October 19, 1999 is defective, the amended "complaint" claimant filed does not correct the problem.

To meet the requirements of Court of Claims Act §11(b), the claim must be "specific enough so as not to mislead, deceive or prejudice the rights of the State." (Heisler v State of New York, 78 AD2d 767) "All elements of the claim need not be set out with formalistic rigidity, but it must convey notice to the State to enable it to properly investigate, defend, and/or settle the claim, [citations omitted] and the time at which the claim arose is clearly an important element of such notice. The time of accrual is essential to determine not only the applicability of the Statute of Limitations but also the amount of damages involved." (Harper v State of New York, supra at 865)

The claim does not set forth a specific date of accrual. It does describe a six-month span of time during which claimant was allegedly treated for a back ailment. However, there is no indication when during this time frame claimant was improperly given the prescription. There is not even the slightest intimation from the documents claimant has submitted to lead the defendant to determine that May 31, 1999 was the date of accrual, as claimant alleges. (See, Harper v State of New York ,supra, [claim sought damages for well contamination, claim did not indicate when the problem arose; Osipova v State of New York, Ct Cl, Bell, J., unreported decision filed March 7, 1997, claim No. 93921, motion No. M-54749 [ claimant contended that the State wrongfully robbed her of part of her SSI grant, and that the claim accrued in February, with no year of accrual. The supporting affidavit in opposition to the motion to dismiss referred to the years 1993 and 1994. The court found that it was impossible to discern when the claim arose]; Johnson v State of New York, Ct Cl, Patti, J., unreported decision filed June 30, 1997, Claim No. 95572, Motion No. M-55137 [ where the claim provided: "[o]n ____________, 199__..." with no indication of the date or time frame during which the claim arose].

The burden is on the claimant to set forth the date and/or time of accrual, to demonstrate that the claim has been filed and served within ninety days of the date of accrual in accordance with sections 10 and 11 of the Court of Claims Act. (Rodriguez v State of New York, supra,153 Misc 2d at 363-364) Without the date or time of accrual, the claim is defective depriving this Court of jurisdiction (Harper v State of New York, supra at 865; Johnson v State of New York, supra) Claimant has failed to meet the requirements of Court of Claims Act §11(b) and such a defect cannot be cured by amendment. (but see, Rodriguez v State of New York, supra) Claimant's remedy is to bring a late claim motion pursuant to Court of Claims Act §10(6).
Accordingly, defendant's motion to dismiss is GRANTED and the claim and the amended claim are hereby DISMISSED. Based upon the decision of this Court, claimant's remaining contentions will not be addressed, and Motion number M-60735 is hereby denied as moot.


May 19, 2000
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims




[1]
The Court adjourned the motion to allow claimant time to submit the missing Exhibit A to the court and to the attorney general. Nothing has been received from the claimant.