New York State Court of Claims

New York State Court of Claims

D'APRICE v. THE STATE OF NEW YORK, #2001-005-505, Claim Nos. 99693, 102068, Motion Nos. M-61151, M-61424, CM-61323, CM-61678


The claims and proposed claims herein sounding primarily in wrongful death cannot survive, inter alia, because neither was served or filed within two years of the death of decedent (Court of Claims Act §10[2]). CPLR 205(a) provides no benefit to the Claimant. The time constraints of §10(2) have been interpreted strictly, and absent legislative change, preclude the Court from exercising its discretion.

Case Information

JOANNE D'APRICE, AS PROPOSED ADMINISTRATRIX OF THE ESTATE OF LAURETTE D'APRICE, DECEASED The captions of Claim Nos. 99693 and 102068 are amended, sua sponte, to reflect the only proper Defendant herein, the State of New York.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The captions of Claim Nos. 99693 and 102068 are amended, sua sponte, to reflect the only proper Defendant herein, the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99693, 102068
Motion number(s):
M-61151, M-61424
Cross-motion number(s):
CM-61323, CM-61678
Donald J. Corbett, Jr.
Claimant's attorney:
Philip J. Hoffman, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Thomas G. Ramsay, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 16, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 19, were read on motions by Defendant for dismissal of the claims and on cross-motions by Claimant,
inter alia
, for permission to file a late claim, and other relief:
Papers Numbered
Notice of Motion No. M-61151, Affirmation and Exhibits Annexed 1, 2

Notice of Cross-Motion No. CM-61323, Affirmation and Exhibits Annexed 3, 4

Defendant's Reply Affirmation 5

Claimant's Reply Affirmation 6

Notice of Motion No. M-61424, Affirmation and Exhibits Annexed 7, 8

Notice of Cross-Motion No. CM-61678, Affirmation and Exhibit Annexed 9, 10

Defendant's Affirmation in Opposition to CM-61678 11

Claimant's Reply Affirmation 12

Defendant's Letter of November 22, 2000 with Attachment 13

Claimant's Letter of November 27, 2000 14

Defendant's Letter of January 10, 2001 15

Claimant's Letter of January 19, 2001 16

Filed Papers: Claim Nos. 99693 and 102068, Answer 17, 18, 19

There are numerous motions pending before me with respect to the claims herein. I will address them seriatim. While these motions were filed some time ago, I deferred ruling upon them, awaiting appellate review of my decision and order in
Liddell v State of New York
, 182 Misc 2d 133. The Appellate Division having ruled in late December 2000, I deemed these motions ready for decision.

First, Motion No. M-61151 was brought by the State of New York, seeking to dismiss Claim No. 99693, filed on January 25, 1999, which alleges, among other things, medical malpractice, wrongful death and negligence. It recites that Claimant Joanne D'Aprice is the proposed administratrix of Laurette D'Aprice, who was an inmate at the Albion Correctional Facility at the time of her death. On August 15, 1997, a Notice of Intention to file a claim was personally served upon the Defendant. The claim alleges, inter alia, that the decedent was under the Defendant's care at Albion from on or about February 1997 until her death on May 18, 1997, at approximately 11:55 p.m. The claim also alludes, in its Fifth Cause of Action, to an accident which occurred on January 25, 1999 [sic, should be 1997] in which the decedent allegedly fell off of a state-owned and operated motor vehicle when a door opened improperly, all of which led to the medical treatment which the Claimant contends is actionable, and which allegedly led to the decedent's death.

Motion No. M-61151 seeks dismissal on the ground that the Claimant lacks the legal capacity, as a proposed administratrix, to file Claim No. 99693. The Defendant urges dismissal in reliance upon the unequivocal holding of Lichtenstein v State of New York, 252 AD2d 921, aff'd 93 NY2d 911. Lichtenstein, while reviewing the requirement of the filing of a claim for wrongful death within ninety days of the formal appointment of an executor or administrator, holds that one who starts an action in the Court of Claims before receiving letters of administration did not properly commence the action. Claimant does not dispute that Claim No. 99693 was filed before Claimant was appointed as Administratrix. This motion must be granted, as both Lichtenstein, supra, and Liddell v State of New York, 182 Misc 2d 133, supra; affd, ____AD2d ____, 718 NYS2d 923, 2000 NY Slip Op. 11685 (Fourth Dept., Dec 27, 2000) (affirmed without costs for reasons stated in my decision), provide no discretion to the Court, and Claim No. 99693 is dismissed.

In response to the dismissal motion, Claimant served Cross-Motion No. CM-61323 on March 9, 2000, in which she sought, inter alia, permission to file a late claim pursuant to Court of Claims Act §10(6); amendment of the claim to raise allegations pursuant to 42 USC §1983; alternatively, seeking permission to refile the claim within six months of a dismissal pursuant to CPLR 205(a), and other relief. Preliminarily, Claimant alleges that a petition was filed on February 25, 1999, with the Kings County Surrogate's Court (Exhibit 3 to this Cross-Motion). She acknowledges that Claim No. 99693 was filed prior to the filing of the petition in Surrogate's Court, because it appeared to counsel that Letters of Administration would not be obtained prior to the expiration of time for filing a claim in this court. Regardless, Letters of Administration were issued to Claimant on January 4, 2000, by the Surrogate's Court of Kings County.

Since Claimant's fears that the claim might be dismissed have now been realized, she requests relief pursuant to CPLR 205(a). Defendant demurs, arguing that since the original action was not "timely commenced" and Claimant had no legal authority to file the claim, the remedial relief of 205(a) is unavailable. Conversely, Claimant urges me to apply the Court of Appeals decision in Carrick v Central Gen. Hosp., 51 NY2d 242, allowing the six month extension of CPLR 205(a), even where the Letters of Administration were not received until after the expiration of the underlying statute of limitations. This is an inviting argument, but unfortunately must be rejected as the Lichtenstein courts specifically addressed this question, examining Carrick. At the Appellate Division, the Third Department noted (252 AD2d 921, at 922-923):

Because this is a suit against the State (compare, Carrick v Central Gen. Hosp., 51 NY2d 242; George v Mt. Sinai Hosp., 47 NY2d 170), these conditions must be strictly construed (see, Dreger v New York State Thruway Auth., 81 NY2d 721, 724). Because claimant had no authority to file the verified claim against the State before being appointed decedent's administrator, and in fact never filed and served any claim after such appointment, the Court of Claims did not err in dismissing the claim as untimely and denying her the relief afforded under CPLR 205 (a) (citations omitted).

And the Court of Appeals closed the door:

... Lastly, we conclude that claimant's arguments with respect to the application of CPLR 205 (a) on this appeal are without merit. (93 NY2d 911, 913).

Accordingly, to the extent that the cross-motion seeks to utilize the ameliorative provisions of CPLR 205(a), Claimant's arguments are unavailing, and must be denied. To the extent that Claimant tries to distinguish the instant matter from Lichtenstein because here a claim was served and filed after her appointment as Administratrix, the argument runs afoul of the two year requirement of Court of Claims Act §10 (2). The Defendant's arguments regarding the unyielding jurisdictional imperatives of §10(2) are meritorious and persuasive.

Additionally, Claimant's arguments to the contrary, the legal disability of imprisonment was eliminated in 1973 (L 1973, ch 687, Sections 1 & 3, effective September 10, 1973; also see, Kelly v State of New York, 57 AD2d 320, 323, affd, 45 NY2d 973), and thus no tolling of the statute of limitations is applicable here. Even if it were, Court of Claims Act §10(5) requires the claim to have been "presented" within two years after removal of the disability, to wit, two years after decedent's demise on May 18, 1997, and thus any late claim, even measuring from service of the cross-motion on March 9, 2000, would be beyond that two year tolling extension.

Part of Cross-Motion No. CM-61323 seeks permission to file a late claim, and Claimant appends a proposed claim. On March 7, 2000,[1] that identical claim in fact was also served on the Defendant and was filed with the Chief Clerk of the Court of Claims and given Claim No. 102068. Claimant appended the January 4, 2000, Letters of Administration, as well as a physician's affirmation (Exhibit 8). Given the later motion practice herein, seeking similar relief, albeit denominated as a motion for permission to amend the claim, I will address the late claim applications simultaneously below.

The filing of Claim No. 102068 on March 7, 2000, generated another motion to dismiss (M-61424) by the Defendant. This claim, like the earlier one, is dependent upon the Notice of Intention served on August 15, 1997, for its jurisdictional foundation. The essence of this motion to dismiss, made in lieu of an answer (Court of Claims Act §11[c]), to which the Defendant appends its reply affirmation (Paper # 5 herein) from the earlier motions, evokes timeliness issues somewhat different from the earlier dismissal motion (M-61151).

With respect to the cause of action sounding in wrongful death, irrespective of the issues noted above with regard to the authority of the Claimant as the proposed or actual administratrix, §10(2) of the Court of Claims Act, mandates that a claim be served and filed within two years of the death of the decedent (May 18, 1997), and here, Claim No. 102068 was filed nearly ten months after the expiration of that two year deadline. Thus, as to the cause of action for wrongful death, this claim is untimely filed.

As to all other causes of action in this claim, they rely exclusively upon the Notice of Intention served on August 15, 1997, timely served less than 90 days after decedent's death. Pursuant to Court of Claims Act §10(3), if a Notice of Intention is served upon the Defendant within 90 days of the accrual of the cause(s) of action, any claim for personal injuries sounding in negligence must be served and filed within two years of the accrual of such claim.[2] Thus, since more than two years has elapsed from the accrual of any other cause of action, the latest of which could have accrued no later than the death of the decedent on May 18, 1997, Claim No. 102068 is untimely served and filed. Accordingly, I have no discretion whatsoever and must grant Motion No. M-61424, and dismiss Claim No. 102068.

The final motion before me is Cross-Motion No. CM-61678, which seeks to amend what Claimant calls the revised claim, Claim No. 102068, or the original claim, Claim No. 99693, pursuant to Court of Claims Act §10(6), to add a cause of action based on alleged violation of New York State Constitution Article I, Section 5, prohibiting the imposition of cruel and unusual punishment. Without intending to be overly didactic, the Court of Claims Act and practice in this court is based upon the State's limited waiver of sovereign immunity and is a maze of strict jurisdictional limitations (sometimes characterized as roadblocks and criticized as impediments). Practice in this court is frequently replete with procedural minutia and, unfortunately, often precludes the opportunity to rule on the merits of claims. By statute, Section 10(6) only applies to motions for permission to file late claims, not to the amendment of claims to add additional causes of action. Regardless, inasmuch as I have dismissed both claims, there is no existing claim capable of being amended.[3]

Nonetheless, Cross-Motion No. CM-61678, served on May 8, 2000, may properly be deemed to read as seeking permission to file a late claim pursuant to Section 10(6). This proposed claim differs from the earlier proposed claim (Cross-Motion No. CM-61323) only with respect to the substitution of a different Seventh Cause of Action, and thus I will address the late claim applications as if they were one, distinguishing them only where relevant, and will address the Seventh Cause of Action separately.

Before even addressing the discretionary factors of Section 10(6), Claimant must demonstrate that the cause(s) of action would not be barred under the provisions of article two of the CPLR. Thus preliminarily I will examine the causes of action for that prerequisite.

The allegations in the First Cause of Action are denominated as sounding in Personal Injury and Negligence. Defendant argues that a late claim cannot be considered for any cause of action sounding in negligence that accrued prior to March 9, 1997, impliedly referring to the initial incident of January 25, 1997 when decedent was first injured at Albion. Indeed the First Cause of Action alludes primarily to the events of January 25, 1997, and the incident of that day, but all subsequent references are generalized, to wit, alleging negligence "subsequent to her incident of January 25, 1997 in failing to secure her while recuperating ... and permitting her to ambulate unsupervised resulting in her falling on several occasions sustaining repeated injury and ultimately death..." (Proposed Claim Paragraph 18). There are no dates contained within this cause of action other than the January 25th incident and the date of death. There are no allegations giving any specific dates which would lead me to believe that this cause of action relates to anything other than the incident of January 25, 1997, or any particular occurrence prior to March 9, 1997, and as to the alleged negligence with respect thereto, it is untimely because the motions are brought more than three years after the January 25th incident and are untimely (CPLR 214).

The Third Cause of Action for Wrongful Death suffers from the inability to comply with absolute limitation of serving and filing a claim within two years of the death (§10[2]). This cause of action, while not barred directly pursuant to CPLR article 2, is not subject to my discretion in this late claim application.

With respect to the Sixth Cause of Action, sounding in medical malpractice, the motions, brought in March and May 2000, are more than two years and six months from the last possible date of treatment, to wit, decedent's demise on May 18, 1997, and thus that cause of action is untimely in contravention of the time limitations of CPLR 214-a. The Defendant is correct, and, to the extent that the proposed late claim alleges medical malpractice it must be denied, because it does not meet an essential prerequisite of §10(6), timeliness with respect to CPLR article 2, and is time-barred.

Section 10(6) of the Court of Claims Act directs the court to consider six factors. First as to the existence of an excuse for the failure to timely file, Claimant, after acknowledging that prior counsel timely served a Notice of Intention, describes the difficulty in obtaining letters of administration due to the incarceration of the decedent's husband, the location of the decedent's children in Brooklyn and Staten Island, and the geographical difficulties for the prior attorneys located in Albany. Thus it apparently took from August 15, 1997, when the Notice of Intention was served, until February 25, 1999, to file a petition in Surrogate's Court, a period of more than eighteen months (and more than 21 months from the date of death), and then an additional 11 months for the Letters to be issued. Current counsel, who was not apparently involved until the fall of 1998, has described the difficulty in obtaining all the necessary papers for Surrogate's Court, although it is hard to ascertain just what efforts were expended for the more than one year after the Notice of Intention was served, prior to his engagement. The reasonableness of the excuse is a close question.

It would appear that the timely service of the Notice of Intention put the Defendant on notice of the essential facts underlying the claim, and permitted it a timely opportunity to conduct an investigation. Clearly, as well, the State would not be substantially prejudiced were I to grant the application, as the Claimant was under the care and custody of the Defendant at all pertinent times. There has been some dispute about the question of the existence of another available remedy. While these matters were pending before me, the Defendant brought to my attention a Summons and Complaint dated May 8, 2000, filed in the US District Court for the Western District of New York, relating to the same underlying circumstances, urging that I apply such filing to the "other available remedy" factor of §10(6) while considering the late claim application. Claimant demurred on several grounds, noting a dismissal motion in federal court, and the differing nature of the relief sought therein. It is not clear to me that this pending action necessarily is a viable remedy, and, in any event, it seeks relief under 42 USC §1983, a remedy not available here.

The most significant factor, as it should be, is the appearance of meritoriousness of the proposed claim, keeping in mind that unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see, Nyberg v State of New York, 154 Misc 2d 199). Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11, the seminal case in this area, provides the standard, that a claim "must not be patently groundless, frivolous or legally defective ...[and] there is reasonable cause to believe that a valid cause of action exists."

Under such scrutiny, the Fourth Cause of Action for Lack of Informed Consent, cannot survive. It is speculative and conclusory, to wit, "[r]easonably prudent persons in [decedent's] condition would not have undergone the treatment .... if fully informed of the risks ..." and "... [t]he failure to adequately and fully inform ... was a proximate cause of the injuries ..." The basis for such allegations is wholly speculative, and there is no testamentary or documentary support for such allegations, let alone the sworn statement of anyone with personal knowledge. This cause of action does not bear the appearance of merit.

Similarly deficient is the Fifth Cause of Action in Negligence in the Supervision, Training, Hiring and Retention of "the respondent physicians, residents, nurses and others involved" in decedent's care, alleging, inter alia, that the Defendant failed to properly train or supervise its employees to "insure that doctor's orders were in fact implemented." This is nothing more than counsel's broad stroke of speculative allegations, with no factual, testamentary or documentary support for such allegations, let alone the sworn statement of anyone with personal knowledge in support. This cause of action has no merit. In rejecting the Fourth and Fifth causes of action, I reiterate that one who seeks the court's discretion must do something more than a claimant who has timely filed a claim.

The Second Cause of Action in Medical Negligence requires scrutiny, particularly in its contrast to medical malpractice. Medical negligence, in essence, alleges negligent omissions or commissions by State caregivers which can be readily determined by the fact finder using common knowledge without the necessity of expert testimony. However, this theory is limited to "those cases where the alleged negligent act may be readily determined by the trier of the facts based on common knowledge" (Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, 256). Such cases have involved scalding a patient with a hot water bottle (Phillips v Buffalo General Hospital, 239 NY 188), leaving an electric light bulb under the sheets (Dillon v Rockaway Beach Hospital, 284 NY 176), leaving a postoperative patient unattended in a bathroom (Coursen v New York Hospital-Cornell Med. Center, supra), and other similar circumstances.

A review of the allegations in this cause of action reveals that decedent was seen on May 14, 1997, at the University of Rochester Medical Center and "physical therapy for range of motion and deep vein thrombosis prophylaxis was recommended but not implemented by respondents, resulting in death..."(Paragraph 26 of the proposed claim). It is then alleged that there was an "inadequate/improper system of administering therapy and medication to patients .... permitting patients to go unmedicated despite physician's orders (Paragraph 27) ... [and] through the exercise of medical judgment ... failing to implement recommended measures to prevent that harm, including the risk of death" (Paragraph 28).

In support of this cause of action, Claimant appends as Exhibit 8 to Notice of Cross-Motion No. CM-61323, a physician's affirmation of one Denise Schiavoni, D.O., dated March 8, 2000. Dr. Schiavoni, after reviewing decedent's medical chart from Albion, affirms:

In my opinion within a reasonable degree of medical certainty, the decedent would not have had a pulmonary thromboembolism due to deep leg vein thrombosis (DVT) had she been given DVT prophylaxsis [sic]. Further, the risk of DVT was identified and a treatment plan was recommended on May 14th, 1997 at Rochester University Hospital. It is my opinion ... that the failure to administer DVT prophylaxsis [sic] was the proximate cause of [decedent's] death on May 18, 1997.

The Defendant has challenged this submission more for what it does not say than what it says, arguing that Dr. Schiavoni does not say that there was any negligence, medical negligence, or other deviation of a standard or breach of a duty. My reading is that she opines that the cause of death on May 18, 1997, was the failure to administer DVT prophylaxis which was recommended in the report dated May 14, 1997. Of course, Claimant has a narrow focus here, she must be careful not to use this affirmation to allege medical malpractice as that is time-barred, but must allude instead to medical negligence, a delicate task.

Most significant to me is the three page May 14, 1997, report from the Rochester Medical Center (see Pages 45-47 of Exhibit 1 to CM-61323), dated just four days prior to the decedent's unfortunate death. As it exists in the decedent's medical records provided to me by Claimant, it was not received at the Albion Correctional Facility until June 2, 1997, some two weeks after the death. I have read this report thoroughly, and I have reviewed Dr. Schiavoni's affirmation, and find nothing contained within that report which reveals that the information contained therein was transmitted to the Albion Correctional Facility prior to June 2, 1997. Indeed, there is nothing within the report that reflects any urgency or emergency type of treatment requiring immediate transmittal. The report specifically recommends a change in the medication regimen, with a recommendation for further change if it proved ineffective after two to three weeks. The report also recommended a follow-up in one month to review test results and interim changes and prognosis after testing was completed. "Physical therapy for range of motion and DVT prophylaxis is also suggested in the interim (emphasis supplied)." Thus the very basis upon which Claimant relies, to wit, the delay or failure to provide DVT prophylaxis was only suggested and not mandated at that moment. This was a report dated May 14th, apparently not even received until June 2nd, and I find no merit to a cause of action sounding in medical negligence for the failure to provide DVT prophylaxis in a three to four day period when Claimant is totally unable to allege, let alone demonstrate, that the Defendant was on notice of the results of this report prior to the death. Claimant raises cogent arguments acknowledging that oral reports are often rendered prior to receipt of a written report, but then suggests that there is a duty or obligation of the physician at Albion to "obtain the results of that test as soon as they were available ... especially given the life or death consequences of such a decision" (Claimant's reply affirmation, Paper No. 6, ¶ 6). She provides no basis or support beyond counsel's bare assertion, and in any event, such a hypothetical duty would sound in medical malpractice, not in medical negligence. Indeed, if the physician at Rochester University Hospital felt that immediate medical attention was required, would not the duty to transmit such information fall to that physician? (cf., Rivers v State of New York, 159 AD2d 788, appeal denied, 76 NY2d 701). Indeed reference to the hypothetical transmittal of an oral report is a two-edged sword, as it would merely suggest but not mandate DVT prophylaxis, as did the written report, and actually undermines Claimant's arguments. The Second Cause of Action does not have the appearance of merit.

The proposed claim in this motion is identical to the earlier claims except that the original Seventh Cause of Action, sounding in violation of 42 USC §1983, has been replaced with the allegations of violation of the New York State Constitution, Article I, Section 5. The underlying statute of limitations applicable to a state constitutional tort cause of action is the three year period set forth in CPLR 214 (5) (Brown v State of New York, 250 AD2d 314, 318), and thus the motion for permission to file this late cause of action is timely as to any acts which occurred after March 9, 1997.

The alleged state constitutional violation is the imposition of cruel and unusual punishment, allegedly depriving decedent of her right to life, in failing to provide her with medications, with physical therapies and failing to heed the advice of an outside medical consultant. I have already addressed above the weakness of arguments relying upon the May 14, 1997 report, and indeed there is nothing to support the contention that there was any failure to heed the advice of the outside consultant.

The Defendant's opposition to this relief is further based upon a theory that no cause of action based upon a state constitutional tort will lie where the conduct complained of can be analogized to a common-law tort (citing Augat v State of New York, 244 AD2d 835, appeal denied, 91 NY2d 814, and Remley v State of New York, 174 Misc 2d 523), and observing that Claimant has alleged six other causes of action sounding in tort. Realistically, the allegations contained within Paragraphs 58 and 59 of the proposed claim assert essentially the same issues articulated in the causes of action sounding in medical malpractice, medical negligence and general negligence.

Claimant urges me to read Remley, supra and Augat, supra, as permitting a state constitutional tort even where the conduct complained of can be analogized to a common-law tort. In Remley, the court denied a late claim application for a cause of action sounding in constitutional tort because a comparison of the injuries alleged in the common-law causes of action and the claims grounded in the Constitution "seek to redress the same ills... [and] no useful purpose would be served by implying a remedy..." (174 Misc 2d 523, 527). This holding is to the contrary of that urged by Claimant. Similarly, the Augat court held "we find that each of claimants' constitutional tort allegations may be analogized to an existing common-law tort for which there are adequate alternate remedies," and affirmed the denial of a late claim (244 AD2d 835, 837). The Claimant's arguments in this regard are without merit.

The holding in De La Rosa v State of New York, 173 Misc 2d 1007, is not to the contrary. In De La Rosa, the court concluded at page 1010, that "[i]t would appear that New York State's constitutional provision prohibiting cruel and unusual punishments meets the Brown criteria for permitting a constitutional tort claim for money damages in this court when there is a deliberately indifferent response by prison officials to the medical needs of inmates .... under proper circumstances, one could reasonably conclude that authorizing a monetary recovery for a violation of the provision would further its purposes and assure its effectiveness by acting as a deterrent to governmental misconduct." That claim was dismissed because no evidence of deliberate indifference was presented, although Claimant observes the dismissal came after the opportunity for discovery and a trial, whereas here she could engage in discovery to obtain the information necessary to prove a constitutional tort. Claimant's theory relies, inter alia, upon an alleged failure to promulgate rules and regulations, including a system of insuring that orders of medical consultants are appropriately carried through. The Defendant's demurral, citing Dubendorf v New York State Educ. Dept., 97 Misc 2d 382, modified on other grounds, 71 AD2d 837, appeal dismissed, 48 NY2d 829, is well-taken. But this claim differs from De La Rosa because that claimant allegedly contracted tuberculosis, a communicable disease, while in the custody of the Department of Correctional Services, and the court implied (and then rejected for the failure of proof) a claim of deliberate indifference to a serious medical need, while here the Claimant was taken to an outside medical facility for examination and treatment, and the Defendant's actions in doing so can hardly be characterized as indifferent, let alone deliberate. In any event, the written report here, merely suggesting the DVT prophylaxis, belies the argument, and certainly Claimant must do something more than merely recite allegations of constitutional violations, hoping to show something after discovery.

Counsel has valiantly and persistently fought for relief here, but as empathetic as I may be for the tragedy of the decedent who died in the custody of the Defendant, away from family and friends, dependent as she was for her medical care upon the Defendant, the waiver of immunity by the State is limited and is strictly construed. Circumstances such as the claim at bar may cry out for more flexible standards, for broader waivers allowing certain actions to be considered on the merits. Here, because of the difficulties in completing the paperwork necessary to have Letters of Administration issued, it was not accomplished by the unbending deadline created by statute (Section 10[2]) and reinforced by the Court of Appeals in Lichtenstein, supra. It appears to me that current counsel could have done nothing more than he did, and unfortunately, he ran into solid-brick walls at every turn. Thus, while I may admire Claimant's tenacity in pursuing these matters here, I am constrained to dismiss the claims and deny the applications for a late claim and other remedial relief, for the reasons enunciated above.

March 16, 2001
Rochester, New York

Judge of the Court of Claims

[1] Lest there be any confusion, Claim No. 102068 was filed on March 7, 2000, and Cross-Motion No. CM-61323 was served two days later on March 9, 2000.
[2] The Court of Claims has no jurisdiction over any causes of action founded upon 42 USC §1983 (Brown v State of New York, 89 NY2d 172; also see, Will v Michigan Department of State Police, 491 U.S. 58, holding that 42 USC § 1983 cannot be used as a basis for suit against a state). Claimant acknowledged as much in Paragraph 4 of the affirmation in support (Paper # 10 herein) and has withdrawn this request for relief .
[3] In any event, Defendant's opposition is also founded on the theory that the statutory provisions of the Court of Claims Act may not be circumvented by an amendment of an original claim and one cannot thereby resurrect a jurisdictionally defective claim, relying on Grande v State of New York, 160 Misc 2d 383.