New York State Court of Claims

New York State Court of Claims

ALBERTI v. THE STATE OF NEW YORK, #2004-033-083, Claim No. 109172, Motion Nos. M-68302, CM-68469


CM-68665


Synopsis



Case Information

UID:
2004-033-083
Claimant(s):
ALEXIS ALBERTI, an infant by her Mother and Natural Guardian, JENNIFER ALBERTI
Claimant short name:
ALBERTI
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK The Court sua sponte amends the caption to read The State of New York as the only defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109172
Motion number(s):
M-68302
Cross-motion number(s):
CM-68469CM-68665
Judge:
JAMES J. LACK
Claimant's attorney:
Sanders, Sanders, Block, Woycik, Viener
& Grossman, P.C.By: Melissa C. Ingrassia, Esq.
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 a motion of Alexis Alberti, an infant by her mother and natural guardian Jennifer Alberti (hereinafter "movant") for permission to file a late claim pursuant to Court of Claims Act §10(5)[1], relating to an alleged medical malpractice occurring on April 13, 1994, when movant was prematurely delivered at University Hospital and Medical Center at Stony Brook (hereinafter "Stony Brook). The allegation is that the physicians in question failed to properly, timely and adequately assess the needs of movant's mother resulting in the premature birth of movant.

Simultaneously with the filing of this motion, movant had served a claim (Claim No. 109172) for medical malpractice against Stony Brook. The proposed claim attached to the motion papers is a duplicate of the filed claim.

Defendant has cross-moved to dismiss the claim[2]. Defendant argues that the claim is defective pursuant to Court of Claims Act §§10 and 11. Defendant opposes the granting of the late claim as beyond the statute of limitations (CPLR 208).

Movant files a cross-motion to amend the late notice of claim to include an ad damnum clause[3].

The Court will first examine the filed claim (Claim No. 109172) for sufficiency. Court of Claims Act §11(b) states:
The claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed. A claim for the appropriation by the state of lands, or any right, title or interest in or to lands shall include an inventory or itemized statement of fixtures, if any, for which compensation is claimed. The notice of intention to file a claim shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated. The claim and notice of intention to file a claim shall be verified in the same manner as a complaint in an action in the supreme court.

An examination of the filed claim reveals that no injuries are alleged that are attributed to movant.[4] Being born prematurely is not, in and of itself, an injury. If as movant alleges in her cross-motion that there are injuries directly attributable to movant's premature birth, then they should be pled. The claim is also defective for lack of the ad damnum clause.

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, aff'd 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, aff'd 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) and the claim is subject to dismissal even if there is no prejudice to defendant (Byrne v State of New York, 104 AD2d 782 lv den 64 NY2d 607).

As the filed claim is defective, as previously mentioned, the Court grants defendant's cross-motion to dismiss the claim and directs the Clerk of the Court to close the file.

The Court now turns to the question of movant's request to file a late claim. CPLR 208 puts a limitation on the length of time the statute of limitations may be extended due to the disability of infancy in a medical malpractice action. The section states that the statute may not be extended longer than ten years from the date of accrual.

Court of Claims Act §10(3) states that a claim to recover damages must be served and filed or a notice of intention must be served within 90 days of the date of accrual. If a notice of intention is served, then the claim must be filed within two years of the date of accrual. Court of Claims Act §10 (5) states "[i]f the claimant shall be under legal disability, the claim may be presented within two years after such disability is removed." There is no limitation in Court of Claims Act §10(5) for a medical malpractice action as there is in CPLR 208. The Uniform Rules for the Court of Claims §206.1(c) states "[t]he provisions of this Part shall be construed consistent with the Court of Claims Act, and matters not covered by these provisions or the Court of Claims Act shall be governed by the Civil Practice Law and Rules (CPLR)." The Uniform Rules for the Court of Claims §206.1(a) states that the rules are applicable to all actions and proceedings in the Court of Claims.

The filing of a claim by an infant is clearly provided in Court of Claims Act §10(5). Thus, CPLR 208 is not applicable to actions in the Court of Claims.

The Court denies movant's motion to file a late claim and cross-motion to amend the proposed late claim as unnecessary (Ne Jame v State of New York, 20 Misc 2d 820).


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 movant's motion: Notice of Motion dated April 5, 2004 and filed April 8, 2004; Affirmation in Support of Melissa C. Ingrassia, Esq. with annexed Exhibit A dated April 5, 2004 and filed April 8, 2004.
[2]The following papers have been read and considered on defendant's cross-motion: Notice of Cross-Motion dated May 19, 2004 and filed May 20, 2004; Affirmation in Support of Cross-Motion and in Opposition to Claimant's Motion of Ellen Matowik, Esq. with annexed Exhibits A-B dated May 19, 2004 and filed May 20, 2004.
[3]The following papers have been read and considered on movant's cross-motion: Notice of Cross-Motion dated June 21, 2004 and filed June 23, 2004; Affirmation in Support of Cross-Motion to Amend Late Claim and in Opposition to Defendant's Cross-Motion to Dismiss of Douglas Sanders, Esq. with annexed Exhibit A dated June 21, 2004 and filed June 23, 2004; Affirmation in Opposition to Claimant's Cross-Motion and Reply Affirmation in Further Support of Defendant's Cross-Motion of Ellen Matowik, Esq. dated July 21, 2004 and filed July 23, 2004.
[4]While Alexis Alberti is actually the claimant in regard to the filed claim, the Court will refer to her as movant for purposes of continuity throughout this decision.