New York State Court of Claims

New York State Court of Claims

SHEEHAN v. THE STATE OF NEW YORK, #2004-033-058, Claim No. 107816, Motion Nos. M-67227, CM-67595


Synopsis



Case Information

UID:
2004-033-058
Claimant(s):
GREGORY SHEEHAN, individually and as Administratorof the Estate of JOCELYN SHEEHAN, deceased
Claimant short name:
SHEEHAN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107816
Motion number(s):
M-67227
Cross-motion number(s):
CM-67595
Judge:
JAMES J. LACK
Claimant's attorney:
McCarthy & Modelewski, Esqs.By: Christopher Modelewski, Esq.
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: John J. Kelley, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 31, 2004
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This claim is brought by Gregory Sheehan (hereinafter "claimant") individually and as the Administrator of the estate of Jocelyn Sheehan (hereinafter "decedent") due to the alleged medical malpractice and negligence of the defendant, the State of New York (hereinafter "defendant") occurring between April 25, 2001 and June 9, 2001. Claimant was appointed as administrator on April 19, 2002. The notice of intention was served upon the defendant on June 25, 2002. The claim was served upon the defendant on June 3, 2003. Defendant seeks to dismiss the claim for claimant's failure to satisfy the pleading requirements of Court of Claims Act §§10 and 11.[1] Defendant argues that the claim fails to state, with specificity, any details which would allow the defendant an opportunity to investigate the claim. In the alternative, defendant seeks permission to serve an amended answer.

Claimant opposes defendant's motion declaring that the claim and notice of intention are sufficient and cross-moves for alternative relief.[2] Claimant asks that the 1st and 9th affirmative defenses of defendant be stricken; that the notice of intention be deemed a claim; and that the claimant be permitted to file a late claim pursuant to Court of Claims Act §10(6). Claimant argues that he has substantially complied with Court of Claims Act §11.

Court of Claims Act §10(2) states that a claim for wrongful death shall be served on the attorney general and filed with the clerk of the court within 90 days of an appointment of an executor or administrator, unless within such time claimant has served a notice of intention upon the State. Claimant was appointed as the administrator on April 19, 2002 and served the notice of intention on June 25, 2002. Therefore, the Court denies defendant's motion to dismiss the wrongful death action for being untimely.

A claim for conscious pain and suffering is untimely unless it is served within 90 days of the date of accrual (Court of Claims Act §10(3); Bourguignon v City of New York, 157 AD2d 644). Court of Claims Act §10(8)(a) states "[a] claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The court shall not grant such application unless: it is made upon motion before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant."

The notice of intention served by claimant, as to pain and suffering, was not timely. Therefore, the Court is unable to grant claimant's request to deem the notice of intention as the claim pursuant to Court of Claims Act §10(8)(a). The Court is also unable to deem the claim for conscious pain and suffering as timely filed.
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, 784, 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).

This claim, as to the wrongful death cause of action, while inartfully written, substantially complies with Court of Claims Act §11(b).

The Court next examines claimant's request to file a late claim pursuant to Court of Claims Act §10(6) for conscious pain and suffering.

In determining a motion seeking permission to file a late claim, the Court must consider the following six enumerated factors listed in Court of Claims Act §10(6): (1) whether the delay in filing was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether the failure to file and serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the movant has any other available remedy. The Court in the exercise of its discretion balances these factors, and, as a general rule, the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979).

Claimant attributes his failure to timely serve a notice of intention to ignorance. The ignorance of the law is not a reasonable excuse (see Sevillia v State of New York, 91 AD2d 792).

The second, third and fifth factors ( notice of the essential facts constituting the claim; an opportunity to investigate the circumstances underlying the claim; and whether the delay resulted in substantial prejudice to the State) are related. The Court will consider these factors together.

All of decedent's medical records are maintained by the hospital, and, the defendant has access to these records which would have provided it with notice of the essential facts and an opportunity to investigate (Rechenberger v Nassau County Medical Center, 112 AD2d 150). Furthermore, the defendant was timely served with a notice of intention for the wrongful death of the decedent. Therefore, there is no substantial prejudice to the State.

Claimant no longer appears to have an alternative remedy. While the medical staff who committed the alleged acts of medical malpractice could have been sued personally, the statute of limitations expired during the pendency of this motion.[3]

While the presence or absence of any one of the six factors in not dispositive, (see Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979), the most critical factor always is the apparent merit of the proposed claim. The movant need only establish that the proposed claim is not patently groundless, frivolous or legally defective and there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). If a movant cannot meet this low threshold and the claim is patently without merit it would be meaningless and futile for the Court to grant the application even if all the other factors in Court of Claims Act §10(6) weighed in favor of the movant's request. Certain matters are beyond the knowledge of the ordinary citizen and require an affidavit of an expert to determine if an appearance of merit exists. A medical malpractice case requires an expert's affidavit (Favicchio v State of New York, 144 Misc 2d 212). However, a physician's affidavit is not necessary if the appearance of medical malpractice can be based on other submissions (DePaolo v State of New York, 99 AD2d 762).

After examining claimant's papers and the report of claimant's expert, the Court finds that claimant has satisfied the requirement that an appearance of merit exists.

Since the majority of factors weigh in claimant's favor, the Court grants claimant's motion to file a late claim pursuant to Court of Claims Act §10(6) for a claim for conscious pain and suffering.

Defendant's last request is to amend its answer pursuant to CPLR 3025(b) to include an affirmative defense with respect to a cause of action relative to negligent supervision. 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.

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 wrongful death cause of action; grants defendant's motion to dismiss for conscious pain and suffering; grants defendant's motion to serve and file an amended answer; denies claimant's cross-motion to strike the first affirmative defense; grants claimant's cross-motion to strike the ninth affirmative defense; denies claimant's cross-motion to deem the notice of intention a claim as to the cause of action for conscious pain and suffering; and grants claimant's cross-motion to serve and file a claim pursuant to Court of Claims Act §10(6). Claimant is directed to serve and file his claim within forty-five (45) days of the filing date of this decision and order in accordance with Court of Claims Act §§10, 11 and 11-a. Defendant shall serve and file its amended answer as to the wrongful death cause of action within forty-five (45) days of the filing date of this decision and order.


March 31, 2004
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1]The following papers have been read and considered on defendant's motion to dismiss the claim: Notice of Motion dated August 6, 2003 and filed August 8, 2003; Affirmation of John J. Kelley, Esq. in Support of Motion with annexed Exhibits A-E dated August 6, 2003 and filed August 8, 2003.
[2]The following papers have been read and considered on claimant's cross-motion: Notice of Cross-Motion to Strike Affirmative Defense and/or Deem Notice of Intention to Make Claim Timely Served dated October 29, 2003 and filed October 31, 2003; Affirmation in Opposition to Defendant's Motion and in Support of Claimant's Cross-Motion of Christopher Modelewski, Esq. with annexed Exhibits 1-5 dated October 29, 2003 and filed October 31, 2003; Affidavit of Gregory Sheehan sworn to October 29, 2003 and filed October 31, 2003; Memorandum of Law of Christopher Modelewski, Esq. undated and received on October 31, 2003; Affirmation in Opposition to Claimant's Cross-Motion and Reply in Support of Defendant's Motion to Dismiss of John J. Kelley, Esq. dated January 20, 2004 and filed January 21, 2004.
[3]The defendant's initial motion was returnable on August 27, 2003, which was prior to the expiration of the statute of limitations. However, due to the claimant's cross-motion and further extensions by the parties, the motions were not submitted until January 28, 2004. This final submission date is beyond the expiration of the statute of limitations.