New York State Court of Claims

New York State Court of Claims

LAIRD v. THE STATE OF NEW YORK, #2004-033-075, Claim No. 108812, Motion No. M-68431


Synopsis



Case Information

UID:
2004-033-075
Claimant(s):
ANGELA LAIRD and DAVID LAIRD
Claimant short name:
LAIRD
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108812
Motion number(s):
M-68431
Cross-motion number(s):

Judge:
JAMES J. LACK
Claimant's attorney:
Rosenberg, Minc, Falkoff & Wolff, LLP
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Ellen Matowik, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 30, 2004
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is the claim of Angela Laird (hereinafter "claimant") relating to an alleged medical malpractice occurring on April 20, 2002, when claimant delivered a child at University Hospital and Medical Center at Stony Brook (hereinafter "Stony Brook).

The allegation is that the physicians in question failed to properly repair the episiotomy created in connection with the delivery. It is alleged that due to the failure to properly repair the episiotomy, the perineum of the claimant was caused to deteriorate, resulting in a condition known as a fistula which necessitated further surgical treatment. The claim of David Laird is derivative in nature.

Claimants were granted permission to file a late claim by decision and order of this Court filed on December 22, 2003 (M-67060). Thereafter, claimants served the claim on the defendant on January 14, 2004 and filed their claim in the Clerk's office on January 22, 2004.

The defendant seeks to dismiss the claim based on two arguments[1]. First, defendant alleges the claim was served on it by regular mail. The second argument is that defendant alleges that the claim filed by claimants are different from the proposed claim annexed to claimants' late claim motion.

Claimants submit no opposition to defendant's motion.

Defendant argues that claimants failed to properly serve the claim on the Attorney General's office. Court of Claims Act § 11(a) states that a copy of the claim "shall be served upon the attorney general either personally or by certified mail, return receipt requested." The requirement of personal service or service by certified mail, return receipt requested cannot be satisfied by alternate means of mailing. Hodge v State of New York, 213 AD2d 766.

Attached to the Court's copy of the claim, is an affidavit of service. The affidavit indicates that the claim was mailed to the Attorney General's Office and to the Clerk of the Court of Claims by regular mail.

In examining the proposed claim, submitted with claimants' motion for a late claim (defendant's Exhibit B) and the claim filed January 22, 2004, the Court notes that there are significant differences in the pleadings.[2] The filing of a claim which differs from the proposed claim approved by the Court is grounds for dismissal of the claim (Ludmerer v State of New York, Claim No. 105505, Motion No. M-66627).

Accordingly, this Court grants defendant's motion and dismisses the claim. The Clerk of the Court is directed to close the file.


September 30, 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: Notice of Motion to Dismiss dated April 15, 2004 and filed May 12, 2004; Affirmation in Support of Ellen Matowik, Esq. with annexed Exhibits A-C dated April 15, 2004 and filed May 12, 2004; Amended Notice of Motion to Dismiss dated May 12, 2004 and filed May 14, 2004.
[2]As the Court has already found that service on the defendant was defective, the Court will forestall an in-depth analysis of the differences.