New York State Court of Claims

New York State Court of Claims

KAMPFER v. THE STATE OF NEW YORK, #2001-001-002, Claim No. 103053, Motion Nos. M-62611, M-62748


Synopsis


Defendant's motion to dismiss the claim and defendant's motion to dismiss the amended claim are granted.

Case Information

UID:
2001-001-002
Claimant(s):
DOUGLAS E. KAMPFER
Claimant short name:
KAMPFER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The claim and amended claim name the "New York State Department of Health and its Consumer Health Information Council" as defendants. The Court of Claims has no jurisdiction to hear claims against defendants other than the State of New York and certain other entities specified by statute; therefore, the Court has amended the caption, sua sponte, to reflect the only proper defendant here, the State of New York (see, Court of Claims Act § 9).
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103053
Motion number(s):
M-62611, M-62748
Cross-motion number(s):

Judge:
Susan Phillips Read
Claimant's attorney:
Douglas E. Kampfer, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Belinda A. Wagner, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
January 8, 2001
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on defendant's motion to dismiss the claim pursuant to CPLR 3211 (a) (2), (7) and (8) and Court of Claims Act §§ 10 and 11 (M-62611) and on defendant's motion to dismiss the amended claim pursuant to CPLR 3211 (a) (2) and (7) (M-62748): Notice of Motion to Dismiss Claim (M-62611), dated October 19 and filed October 24, 2000; Affirmation in Support of Belinda A. Wagner, Esq., AAG, dated October 19 and filed October 24, 2000, with annexed Exhibit A; Notice of Motion to Dismiss Amended Claim (M-62748), dated November 16 and filed November 20, 2000; Affirmation in Support of Belinda A. Wagner, Esq., AAG, dated November 16 and filed November 20, 2000, with annexed Exhibit A; Affirmation in Opposition of Douglas E. Kampfer, pro se, sworn to November 27 and filed November 28, 2000, with annexed Exhibits A-B; the claim, sworn to September 7 and filed September 11, 2000; and amended claim, sworn to October 23 and filed October 24, 2000.

Douglas Edwin Kampfer ("claimant") filed the original claim, pro se, on September 11, 2000, alleging that a pamphlet published by the New York State Department of Health ("DOH") entitled "Your Rights as a Hospital Patient in New York State" injured and damaged him because of the "false advertising and/or misleading information" contained in it (claim, sworn to September 7 and filed September 11, 2000 ["claim"], ¶ 2). While a patient at Nathan Littauer Hospital in early December 1999, claimant evidently requested that only his own physician examine his X-rays; however, a hospital staff radiologist read claimant's X-rays, allegedly in violation of his rights as explained in the DOH pamphlet's declaration that "[a]dults in New York have the right to accept or refuse medical treatment, including life-sustaining treatment" (claim, ¶ 2; amended claim, sworn to October 23 and filed October 24, 2000, ["amended claim"], ¶ 2). Accordingly, claimant sought $10,000 (claim) and now seeks $50,000 (amended claim) in damages for unspecified injuries (cf., Court of Claims Act § 11 ["The claim shall state . . . the items of damage or injuries claimed to have been sustained and the total sum claimed."]).

Prior to filing this claim, claimant commenced a small claims action against the hospital and its president in City Court in the City of Gloversville, Fulton County. He alleged that the referral of his X-rays to hospital radiology contravened his patient's rights and caused emotional harm and distress for which he sought reimbursement of the $435 radiology bill (Affirmation in Opposition of Douglas E. Kampfer, pro se, sworn to November 27 and filed November 28, 2000 ["Kampfer Aff."], Exh. A). City Court dismissed this action because claimant had signed a general consent form granting blanket authorization for the hospital to provide any care and treatment, including diagnostic procedures, deemed necessary by hospital staff. City Court found that "[t]his written authorization must be considered superior to any verbal requests that [claimant] makes to any doctor or nurse practitioner and authorizes the hospital to do anything it deems appropriate to provide quality care to [him]" (Kampfer Aff., Exh. A).[1]

Defendant State of New York ("defendant" or "the State") now moves to dismiss the claim and the amended claim pursuant to CPLR 3211 because of claimant's alleged failure to comply with the filing and service requirements of Court of Claims Act §§ 10 and 11 and the time limitations in Court of Claims Act § 10 (Affirmation in Support of Belinda A. Wagner, Esq., AAG, dated October 19 and filed October 24, 2000 ["Wagner Aff. (M-62611)", ¶¶ 2-5]; Affirmation in Support of Belinda A. Wagner, Esq., AAG, dated November 16 and filed November 20, 2000 ["Wagner Aff. (M-62748)", ¶¶ 2-5]). Claimant does not respond to the portion of defendant's motion concerning improper service of the original claim by first class mail rather than by registered mail. Instead, he properly served an amended claim upon the State and filed it in the Court of Claims on October 24, 2000 (Wagner Aff. [M-62748], ¶¶ 3-4; amended claim). Claimant contends that his claim is timely because filed within 90 days after discovery of the cause of his injury, which he interprets as having occurred when City Court dismissed his small claims action on August 28, 2000 (Affirmation in Opposition of Douglas E. Kampfer, pro se, sworn to November 27 and filed November 28, 2000 ["Kampfer Aff."]), ¶ 5; amended claim, ¶ 2).

The filing and service requirements contained in Court of Claims Act §§ 10 and 11 are jurisdictional in nature and must be strictly construed (see, Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723). Failure to comply with these requirements deprives this Court of jurisdiction (see, Nish v Town of Poestenkill, 179 AD2d 929, 930, appeal dismissed 79 NY2d 1040; Firth v State of New York, 184 Misc 2d 105, 109).

Here, defendant states that claimant improperly served the initial claim by regular first-class mail and attaches a photocopy of the envelope to prove the point (Wagner Aff. [M-62611], ¶ 3, Exh. A), which claimant does not dispute; therefore, claimant's original claim, having failed to obtain jurisdiction over the State, is a nullity (see, Finnerty v New York State Thruway Auth., supra, at 723; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687, 688; Hodge v State of New York, 213 AD2d 766; Charbonneau v State of New York, 178 AD2d 815, 816, affd sub nom. Dreger v New York State Thruway Auth., 81 NY2d 721; cf; Martin v State of New York, 185 Misc 2d 799).

What remains to be decided is whether the amended claim, filed on October 24, 2000, complies with the timeliness requirements of Court of Claims Act § 10, which mandates service of the claim upon the Attorney-General and filing of the claim with the Court of Claims within 90 days of accrual. Claimant's contention that his claim did not accrue until the day his small claims action was dismissed is without merit (Kampfer Aff., ¶ 5, Exh. A): "Discovery accrual is not the norm; rather, it is an exception recognized for particular types of actions" (Kitonyi v Albany County, 128 AD2d 1018, 1019). Courts have repeatedly held that discovery accrual of an action "should not be extended beyond the limited instances provided for by the Legislature" (Conner v State of New York, 268 AD2d 706, 707, quoting Matter of Barresi v State of New York, 232 AD2d 962, 963; see, Matter of Steinhardt v Johns-Manville Corp., 54 NY2d 1008, 1011, amended 55 NY2d 802, appeal dismissed, cert. denied 456 US 967). There is no statutory exception applicable in this case and, in fact, a discovery accrual date here would run contrary "to the intent of the Legislature which enacted the [curtailed] time limitations set forth in Court of Claims § 10" (Flushing Natl. Bank v State of New York, 156 Misc 2d 979, 982, affd, 210 AD2d 294, lv denied 86 NY2d 706). Application of the general rule regarding when an action accrues for purposes of Court of Claims Act § 10 requires the Court to determine when claimant's damages became "reasonably ascertainable" (Augat v State of New York, 244 AD2d 835, 836, lv denied 91 NY2d 814; see, Conner v State of New York, supra), which plainly occurred in December 1999 when he was a patient at the hospital or shortly thereafter.

Based upon the foregoing, the Court grants defendant's motion to dismiss the claim for failure to comply with the filing and service requirements of Court of Claims Act §§ 10 and 11; the Court also grants defendant's motion to dismiss the amended claim as untimely because it was not filed within 90 days of accrual as required by Court of Claims Act § 10.


January 8, 2001
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[1]
The language of the DOH pamphlet concerning a patient's right to accept or refuse treatment seems to pertain, in part, to claimant's right--had he chosen to exercise it--to refuse to sign this consent form. His ostensible misunderstanding about the effect of his written consent to treatment does not render the information contained in DOH's pamphlet inaccurate or misleading, as he alleges. Claimant also alleges that DOH's publication of the patient's rights pamphlet somehow constitutes the unauthorized practice of law; however, the State cannot be considered a "natural person" (see, Judiciary Law § 478; cf., Will v Michigan Department of State Police, 491 US 58).