New York State Court of Claims

New York State Court of Claims

MULLIN v. UNIVERSITY HOSPITAL, STATE UNIVERSITY OF NEW YORK AT STONY BROOK, OF THE STATE OF NEW YORK, #2002-016-094, Claim No. 99957, Motion No. M-65537


Synopsis


Wrongful death and conscious pain and suffering claim was dismissed as untimely.

Case Information

UID:
2002-016-094
Claimant(s):
BERNARD MULLIN, as Administrator of the Estate of SEAN MULLIN, deceased, and BERNARD MULLIN, individually
Claimant short name:
MULLIN
Footnote (claimant name) :

Defendant(s):
UNIVERSITY HOSPITAL, STATE UNIVERSITY OF NEW YORK AT STONY BROOK, OF THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99957
Motion number(s):
M-65537
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Kevin T. Mulhearn, P.C.By: Kevin T. Mulhearn, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Ellen Matowik, Esq., AAG
Third-party defendant's attorney:

Signature date:
October 30, 2002
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

This is defendant's motion to dismiss on the grounds that the claim herein: (1) was untimely for the purposes of the relevant statute of limitations and the Court of Claims Act (the "Act"); (2) is insufficiently particular pursuant to §11 of the Act; and (3) fails to contain a CPLR §3012-a certification. In the underlying claim, it is alleged that care provided to Sean Mullin commencing on February 28, 1997 at the State University Hospital at Stony Brook constituted medical malpractice and resulted in his death on March 9, 1997. To the extent the claim alleges wrongful death, §10.2 of the Court of Claims Act provides in relevant part that:
A claim by an executor or administrator of a decedent . . . for damages for a wrongful act, neglect or default, on the part of the state by which the decedent's death was caused, shall be filed and served upon the attorney general within ninety days after the appointment of such executor or administrator . . . In any event such claim shall be filed and served upon the attorney general within two years after the death of the decedent.


See also EPTL §5-4.1, which provides that a wrongful death action "must be commenced within two years after the decedent's death."

It is undisputed that Sean Mullin died on March 9, 1997 and that the claim was filed and served on March 10, 1999 – two years and one day later. Citing the use of the word "after" in the Act and the EPTL, Claimant argues that "[a]s the statute of limitations begins to run on the date of decedent's death, an action is timely if it is filed on or before two years and one day after the day of decedent's death." See ¶6 of the September 12, 2002 affirmation of Kevin T. Mulhearn. Such is contrary to the plain language of such statutes. Nor do the cases cited by claimant support this reading. In fact, Greene v Abbott Laboratories, 148 AD2d 403, 539 NYS2d 351 (1st Dept 1989), cited by claimant, specifically held that where the decedent died on March 9, 1969, "plaintiff had until March 9, 1971 to interpose a timely claim for wrongful death." Id., 148 AD2d at 404, 539 NYS2d at 353.

Claimant also argues that the claim was not filed and served until March 10, 1999 because defendant delayed in providing medical records until counsel's February 22, 1999 letter. As defendant points out however, claimant could not have filed this claim until appointed as executor, which was not done until March 4, 1999. In any event, this Court has no discretion to waive the two-year statutory period, as it is jurisdictional. See, e.g., Smith v State of New York, 53 AD2d 756, 757, 384 NYS2d 517, 519 (3d Dept 1976), affd 41 NY2d 1063, 396 NYS2d 174 (1977).

To the extent that the claim herein alleges conscious pain and suffering caused by medical malpractice, such is governed by §10.3 of the Act. See, e.g., Pelnick v State of New York, 171 AD2d 734, 567 NYS2d 290 (2d Dept 1991), which holds that unlike a wrongful death claim, a conscious pain and suffering claim is governed by the timing requirements of §10.3 of the Act. Section 10.3 provides that a claim must be filed and served within 90 days of accrual or, in the alternative, a notice of intention must be served within 90 days of accrual and the claim then filed and served within two years. In this case, Mullin was treated from February 28, 1997 until March 9, 1997. It is undisputed that the claim was not filed and served within 90 days nor was a notice of intention served within such period.

In sum, this Court lacks jurisdiction over the claim herein and the remaining grounds for defendant's motion need not be addressed. For the foregoing reasons, having reviewed the parties' submissions[1], IT IS ORDERED that motion no. M-65537 be granted and claim no. 99957 be dismissed.

October 30, 2002
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]The following were reviewed: defendant's notice of motion with affirmation in support and exhibits A and B; claimant's affirmation in opposition with exhibits A and B; and defendant's reply affirmation.