New York State Court of Claims

New York State Court of Claims

LEVINE v. THE STATE OF NEW YORK, #2002-016-116, Claim No. 104857 , Motion Nos. M-65513, CM- 65644


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):
CM- 65644
Claimant's attorney:
Kushnick & Associates, PCBy: Lawrence A. Kushnick, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Ross N. Herman, AAG
Third-party defendant's attorney:

Signature date:
November 5, 2002
New York

Official citation:

Appellate results:

See also (multicaptioned case)


A conference was held in this matter June 13, 2002. Following the conference, motion practice ensued, commenced by the defendant. Following claimant's opposition papers, defendant submitted a reply affirmation. At such point, two issues survived. Defendant moves to dismiss the claim for failure to file a certificate of merit as required by CPLR 3012-a and maintains that the University Hospital at Stony Brook is not a proper party.

For its part, claimant, inter alia, cross-moves for an Order permitting late service of a certificate of merit and dismissing the defendant's affirmative defenses relating to an improper defendant and lack of a certificate of merit (affirmative defense nos. 2 and 3).

According to the underlying claim, on August 4, 2000, Marsha Levine[1] was "receiving physical therapy and was being guided, directed and supervised by a physical therapist...when the pin placed in an exercise device suddenly...became dislodged... resulting in a pelvic fracture..." (Claim ¶3, exh A of cl affirm).

Claimant in her motion papers states that her action is one sounding in negligence, not medical malpractice:
Notably, this action is premised upon the [defendant's] failure to properly place and secure a pin in an exercise device...This office is not aware that a Certificate of Merit is required in that the genesis of this matter is for the negligence committed by a physical therapist.

(Cl affirm, ¶12).
No allegation has advanced that would implicate medical malpractice. Section 3012-a, enacted as part of an omnibus package of legislative changes relating to medical malpractice (ch 266, L 1986; and by ch 294, L. 1985), covers only medical, dental and podiatric actions. See subdivision (a) of §3012-a.

The claimant here has incorrectly named the defendant as follows (using upper and lower case): "State University Hospital of New York at Stony Brook a/k/a University Hospital at Stony Brook a/k/a Stony Brook University Hospital." Naming an entity of the State, instead of the State itself, does not implicate jurisdiction.

Accordingly, having reviewed the parties submissions,[2] IT IS ORDERED that the defendant's motion to dismiss is denied; that the portion of claimants' motion relating to permission for the late service of a certificate of merit is denied; and that claimants' motion insofar as it seeks dismissal of defendant's affirmative defenses relating to such certificate and to the improper naming of the defendant is granted. IT IS FURTHER ORDERED that, effective on the date this Order is filed, the sole defendant in this matter shall be "The State of New York."

November 5, 2002
New York, New York

Judge of the Court of Claims

[1] Ira Levine has a claim that is derivative of his wife's; the term "claimant" herein will refer to Marsha Levine.

[2] The following papers from the defendant were reviewed: (i) a Notice of Motion together with an Affirmation, including exhibits A through C; and (ii) a Reply Affirmation with one exhibit, which Affirmation narrowed the grounds of dismissal that the defendant's original Affirmation was based upon. From the claimants, the following was reviewed: a Notice of Cross-Motion together with an Affirmation containing exhibits A through I.