New York State Court of Claims

New York State Court of Claims

CHARLES v. THE STATE OF NEW YORK, #2004-030-941, Claim No. None, Motion No. M-69099


Synopsis



Case Information

UID:
2004-030-941
Claimant(s):
IMMACULA CHARLES, Administratrix Of the Estate of MARIE LESTIN, and IMMACULA CHARLES, Individually The court has, sua sponte, corrected the caption to properly reflect the defendant.
Claimant short name:
CHARLES
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The court has, sua sponte, corrected the caption to properly reflect the defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-69099
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
Ornstein & Ornstein, P.C.by Sheldon Green, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby Ellen Matowik, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 8, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The court read and considered the following papers on claimant's motion for an order "permitting the late filing of a Notice of Claim": Notice of Motion, Affirmation and Exhibits; Affirmation in Opposition.

According to the papers before the court, claimant's decedent was a patient at Downstate Medical Center from September 4, 2002 through October 11, 2002 and she died on November 20, 2002 as the result of injuries arising from alleged medical malpractice at the defendant's facility. As the result of counsel's apparent failure to distinguish practice in the Court of Claims from practice in Supreme Court[1], claimant never interposed a timely claim, instead serving a series of documents that were titled "Notice of Claim" but never filing anything with the court until the instant motion papers. The alleged facts reveal two potential causes of action – one sounding in negligence for decedent's pre-death personal injuries and one for wrongful death.

Pursuant to Court of Claims Act
§
10(3) a claim to recover damages for negligence must be served and filed within 90 days of accrual, unless a notice of intention to file a claim is served on the Attorney General, in which case the claim must be filed and served within two years of accrual.

Pursuant to Court of Claims Act
§
10(2), a claim seeking damages for wrongful death must be served and filed within 90 days of the appointment of the deceased's executor or administrator, unless a notice of intention to file a claim is served within such time, in which event the claim must be filed within two years of the date of death.

Claimant served a notice of intention on the Attorney General by certified mail, return receipt requested, on December 30, 2002. This had the effect of extending the time in which claimant could file the personal injury claim, without permission of the court, to October 11, 2004 (two years from accrual of the cause of action). It also had the effect of extending the time in which the wrongful death claim could be filed until November 20, 2004 (Matter of Johnson v State of New York, 49 AD2d 136). Of course, neither claim could be properly interposed until a personal representative was appointed for the decedent, which occurred on August 18, 2003.

Subsequent to claimant's appointment, instead of preparing, serving and filing a claim and thus commencing an action, claimant instead prepared another document called a "Notice of Claim," again stating that it is presented for "adjustment and payment" and that if such does not occur, claimant intends to commence an action. Although claimant treated this document like a notice of intention, by serving it on the defendant but not filing it with the court, defendant apparently treated it as if it had been intended to be a claim and served an answer, noting (correctly) in the answer a number of reasons why that document, if viewed as a claim, was defective. In any event, it was never filed with the court and the question of its adequacy never arose. In the context of these proceedings, that document is a nullity.

As noted, claimant's time for commencing the estate's two causes of action (personal injury and wrongful death) expired on October 11, 2004 and November 20, 2004, respectively. Claimant now moves for permission to late file her "Notice of Claim," apparently intending that this document serve the purpose of a notice of intention to file a claim (notwithstanding that claimant has already served three notices of intention in this matter) and further presumably intending, after the motion is granted, to interpose a summons and complaint. The defendant treated the motion as seeking permission to late file a claim pursuant to Court of Claims Act
§
10(6), because that is the sole relief that is available to claimant at this point, and the court will do so as well.

Preliminarily, the court points out that a "claim" is a document that fulfills the functions, in the Court of Claims, that a summons and complaint fulfills in a Supreme Court action. It is analogous to a notice of claim pursuant to the General Municipal Law only in that both documents are intended to give prompt notice, but distinct from a notice of claim in that a claim is the document that commences the action and defines the issues. It should read exactly like a complaint, with separately stated causes of action (in this case, two separately stated causes of action) and should contain a demand for relief.

Court of Claims Act
§
10(6) grants the court the discretion to allow the service and filing of a late claim upon consideration of all the relevant factors, including whether claimant's delay was excusable, whether defendant had timely notice of the relevant facts and the opportunity to investigate, whether defendant would suffer substantial prejudice if the motion were granted, whether the proposed claim appears meritorious and whether claimant has an alternate remedy. While it seems clear that the "notice," "opportunity to investigate" and "lack of prejudice" factors would favor granting the motion, by virtue of the timely service of the original notice of intention on the Attorney General, and equally clear that claimant's delay, cannot be deemed excusable, the papers before the court do not permit analysis of the two remaining factors: whether the proposed claim appears meritorious (an issue that requires, at least, an affidavit from a physician detailing the alleged malpractice, not the conclusion of an attorney that he read the medical records and concludes that it is obvious that malpractice was committed), and whether claimant has an alternate remedy (e.g., a malpractice action in another court against any potentially liable individuals). Also lacking is an adequate proposed claim, as the statute requires.

Accordingly, the court sua sponte adjourns the motion to the court's February 16, 2005 motion calendar. Claimant is directed to serve and file, no later than February 1, 2005, a proper proposed claim, an affidavit from a physician and any other evidence bearing on the question of whether the proposed claim appears meritorious, and claimant's counsel is directed to address the alternate remedy issue. Defendant, of course, may respond to claimant's submission.


December 8, 2004
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]Confusion that continues, as evidenced by the requested relief on this motion, permission to file a late "Notice of Claim," a document that does not exist in the Court of Claims, rather than permission to file a late claim pursuant to Court of Claims Act §10(6). The proposed "Notice of Claim" which claimant seeks permission to late file does not contain a demand for relief, does not comply with Court of Claims Act §11(b) and states, improperly, that it is presented for "adjustment and payment," barring which, claimant "intends" to commence an action.