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
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
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
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
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
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
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.