New York State Court of Claims

New York State Court of Claims

FARDELLA v. THE STATE OF NEW YORK, #2004-033-054, Claim No. 108433, Motion No. M-67729


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:
Roura & MelamedBy: Matthew R. Kreinces, Esq.
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Ellen Matowik, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 30, 2004

Official citation:

Appellate results:

See also (multicaptioned case)

This claim is brought by Leo Fardella (hereinafter "claimant") as the executor of the estate of Elaine Fardella (hereinafter "decedent") due to the alleged medical malpractice and negligence of the defendant, the State of New York (hereinafter "defendant"). The alleged malpractice and negligence occurred on January 27, 2003. Claimant was appointed as executor on August 12, 2003. The notice of intention was served upon the defendant on April 2, 2003.[1]

Defendant seeks to dismiss the claim in this pre-answer motion pursuant to CPLR 3211 and Court of Claims Act §§10 and 11.[2] Defendant argues that the claim fails to state, with specificity, any details which would allow the defendant an opportunity to investigate the claim. Further defendant, states:
. . . other than the boilerplate allegations contained in the claim, it also does not contain sufficient particularization of the defendant's conduct as it relates to the allegations, giving the defendant no clear notice as to what duties...were breached, all in violation of the requirements of Section 11 of the Court of Claims Act (Defendant's Affirmation ¶7).

In addition, defendant argues that the claim does not enumerate the damages and does not request an amount in compliance with the Uniform Rules of Court of Claims §206.6.

Claimant opposes defendant's motion by stating that the claim and notice of intention are sufficient. Claimant points to language in the notice of intention which is meant to be specific. In addition, claimant has appended medical records as exhibits which claimant argues were available to defendant to identify and investigate the claim. Claimant argues that he has substantially complied with Court of Claims Act §11.

The requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Lurie v State of New York, 73 AD2d 1006, affd 52 NY2d 849). The purpose of these requirements is to give the State prompt notice of an occurrence and an opportunity to investigate the facts and prepare a defense. There must be sufficient detail to enable the State to investigate (Schwartzberg v State of New York, 121 Misc 2d 1095, affd 98 AD2d 902). Pursuant to the Court of Claims Act, a claim must include the time when and place where the claim arose, the nature of the claim, items of damage or injuries sustained as well as the total sum claimed. If the original document does not include all that is essential to constitute a claim, the document is jurisdictionally defective (Grande v State of New York, 160 Misc 2d 383). The claim is subject to dismissal and "a lack of prejudice to the State is an immaterial factor" (Byrne v State of New York, 104 AD2d 782, 785, lv den 64 NY2d 607).

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).
Claimant states "[a]s the Court is well aware, this is a Claim concerning the fall of an elderly woman due to the failure of the respondent to properly restrain, observe and attend to the claimant." (Attorney's Affirmation ¶3). However, after reading the claim, the Court firmly states that it was not aware of the facts of this case. Prior to the first cause of action, at ¶4, the claim reads as follows:
4. The claim arose on or about January 27, 2003, while Claimant, ELAINE FARDELLA, was a patient in the care of the Respondent, its agents servants and/or employees, at the UNIVERSITY MEDICAL CENTER STATE UNIVERSITY OF NEW YORK AT STONY BROOK when the Decedent was improperly tested, improperly diagnosed and improperly treated at the aforesaid hospital facility; in failing to properly monitor Decedent's condition, in failing to timely perform diagnostic tests; in allowing the Decedent to fall and become injured; in failing to perform adequate follow-up treatment; in ignoring the Decedent's signs, symptoms and complaints; in failing to perform adequate follow-up studies on the Decedent; in abandoning the Decedent; in failing to provide proper and adequate care; and in otherwise being careless, reckless and negligent.

The claim then lists two causes of action which go on for an additional 33 paragraphs. None of those paragraphs mention that the decedent fell nor how she fell. In the motion papers, claimant says that the fall occurred because decedent was being improperly restrained. The claim fails to state anywhere that the decedent was not properly restrained.

Uniform Court of Claims rule 206.6(b) states:
There shall be included in each claim, or attached thereto, a schedule showing in detail each item of damage claimed and the amount of such item. Where claimant is proceeding upon more than one cause of action, each additional cause of action shall be separately stated and numbered.

An examination of the claim reveals that no such effort has been made as to either cause of action. At the end of each cause of action, claimant states that decedent has suffered "serious injuries" and there is no specific demand for money damages.

The claim is inartfully written in that it is filled with conclusory allegations which do not particularize facts sufficient enough to give defendant notice of the facts. The claim does not substantially comply with Court of Claims Act §11.

Based on the foregoing, the Court concludes that the claim fails to satisfy the pleading requirements of Court of Claims Act §11. The defendant's motion is granted and the claim is dismissed.

March 30, 2004
Hauppauge, New York

Judge of the Court of Claims

[1]In examining the caption on the notice of intention (claimant's exhibit A) and the caption of the claim (claimant's exhibit B), it appears that decedent was alive when the notice of intention was served. In fact, in claimant's papers, counsel states that claimant is not suing for wrongful death.
[2]The following papers have been read and considered on defendant's motion for an Order pursuant to CPLR §3211: Notice of Motion dated November 26, 2003 and filed December 1, 2003; Affirmation in Support of Ellen Matowik, Esq. with annexed Exhibit A dated November 26, 2003 and filed December 1, 2003; Affirmation in Opposition of Matthew R. Kreinces, Esq. with annexed Exhibits A-G dated December 11, 2003 and filed January 2, 2004; Reply Affirmation of Ellen Matowik, Esq. with annexed Exhibit dated January 9, 2004 and filed January 13, 2004.