New York State Court of Claims

New York State Court of Claims

CONDOLFF v. THE STATE OF NEW YORK, #2004-033-048, Claim No. 107779, Motion No. M-67302


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):

Claimant's attorney:
Andrew Rosner, Esq.By: David Shumer, Esq.
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: John J. Kelley, Esq., Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 24, 2004

Official citation:

Appellate results:

See also (multicaptioned case)

This is a claim for injuries sustained between July 11, 2002 and July 25, 2002, by Edward Condolff (hereinafter "claimant") due to the alleged medical malpractice of the State University Hospital at Stony Brook (hereinafter "defendant"). Claimant also alleges causes of action for lack of informed consent and negligent credentialing of defendant's medical staff. The claim of Joan Condolff is derivative in nature.

According to the claim, claimant was hospitalized from July 11, 2002 through July 25, 2002 at the defendant's hospital. During the claimant's stay, he was given heparin (an anticoagulant). Claimant alleges that the heparin caused internal bleeding in claimant's abdomen. This bleeding led to pressure on claimant's leg which caused damage to the leg. Claimant's allegations of malpractice are based on the improper administration of the medication, improper follow-up/monitoring and failure to test or diagnose his condition. Further, claimant alleges that if he had been informed of the risks associated with the medication he would have declined it as a treatment. Lastly, claimant alleges that defendant was "careless, negligent and guilty of malpractice in credentialing its medical staff, and in granting privileges to them."[1]

Defendant moves this Court to dismiss claimant's fourth cause of action[2], which is the negligent credentialing of the medical staff. Defendant argues that the allegations contained in this cause of action are insufficient to maintain a cause of action pursuant to §11(b) of the Court of Claims Act. Claimant does not identify who committed any acts of negligence, when the act occurred, which members of the medical staff were not qualified to hold a position, or how they were not qualified. In addition, defendant asserts that the fourth cause of action is an improper attempt to gain access to records which are privileged under Education Law §6527(3). In the alternative, defendant seeks permission to file an amended answer.

The notice of claim requirements of the Court of Claims are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Authority, 75 NY2d 721). The purpose of these requirements is to give the State prompt notice of an occurrence and an opportunity to investigate the facts. To meet this purpose a claim must include the manner in which the claim arose with sufficient specificity so as to enable the defendant to investigate the occurrence (Court of Claims Act §11(b)). A failure to comply with the requirements of Court of Claims Act §11 renders the claim jurisdictionally defective and subject to dismissal (Harper v State of New York, 34 AD2d 865). The statutory provisions of the Court of Claims Act may not be circumvented by an amendment of an original claim (Burrows Paper Co. v State of New York, 174 Misc 850). If the original document does not include all that is essential to constitute a claim, the court is without jurisdiction (Artale v State of New York, 140 AD2d 919).

It is well settled that absolute exactness is not required, only a statement with sufficient definiteness to give the defendant an opportunity to investigate the claim (Heisler v State of New York, 78 AD2d 767). "The statement must be specific enough so as not to mislead, deceive or prejudice the rights of the State . . . Conclusory or general allegations of negligence that fail to adduce the manner in which the claimant was injured and how the State was negligent do not meet its requirements" (Heisler at 767 - 768).

Defendant argues that claimant may not rely on the rest of his claim to satisfy any defective pleading in the fourth cause of action. However, paragraph 47 of the claim specifically states that it "repeat[s] and reallege[s]" each previous allegation as if it were set out fully. The Court finds that claimant has substantially complied with the requirements of §11(b) of the Court of Claims Act so as to state a cause of action. Claimant's stay in the hospital was for a definite term and those persons on defendant's medical staff who came into contact with the claimant would be listed in claimant's medical records.

The Court must also deny defendant's argument with respect to Education Law §6527(3). Defendant, of course, is correct in its assessment that the formal utilization review procedure leading to the credentialing and granting of privileges to its medical staff pursuant to this section is not subject to disclosure. However, the aforementioned section is not necessarily the exclusive source by which defendant may be in possession of knowledge of prior conduct of its medical staff which should have or could have prevented the granting of privileges (Byork v Carmer, 109 AD2d 1087, 1088). Therefore, claimant may be able to prove this cause of action without the need for privileged material.

Defendant's last request is to amend its answer to include an affirmative defense of qualified privilege pursuant to Education Law §6527(3) pursuant to CPLR 3025(b). CPLR 3025(b) says that a party may amend its pleading at any time with leave of the court and that leave shall be freely given. Claimant opposes granting defendant leave to amend and argues that defendant has no legal basis to assert the defense.

The Court finds no merit to claimant's opposition, nor does the Court find any prejudice to claimant. Defendant's motion to amend its answer is granted.

Accordingly, the Court denies defendant's motion to dismiss the fourth cause of action and grants defendant's motion to amend the answer. Defendant is directed to serve and file its amended answer within forty (40) days of the filing of this decision and order.

March 24, 2004
Hauppauge, New York

Judge of the Court of Claims

The quote is from paragraph 48 of the claim
The following papers have been read and considered on defendant's motion to dismiss claimant's fourth cause of action, or, in the alternative, seeking permission to file an amended answer: Notice of Motion dated August 20, 2003 and filed August 21, 2003; Affirmation of John J. Kelley, Esq., in Support of Motion with annexed Exhibits A-D dated August 20, 2003 and filed August 21, 2003; Affirmation in Opposition of David Shumer, Esq. with Exhibits A-B dated September 15, 2003 and filed September 17, 2003; Reply Affirmation of John J. Kelley, Esq. dated October 22, 2003 and filed October 29, 2003.