Correspondence dated October 19, 2005 from Ed J. Thompson, Esq., Assistant
Attorney General 6
Between June and August, 2005, an outbreak of cryptosporidiosis occurred, which
was eventually traced to contaminated water at the Spraypark at Seneca Lake
State Park, resulting in the closure of the Spraypark in mid-August, 2005 by the
State Department of Health. Claimants have filed their claim seeking damages
from such exposure, and in their filed claim, they have evidenced an intention
to seek class action certification. Claimants have not yet sought certification
of this class.
Rather, in the instant proceeding, claimants seek an Order from this Court
compelling the State to provide notice to potential claimants, prior to
certification of the class, by mailing such a notice to all persons who have
contacted the State Department of Health, or any other State entity, regarding
possible exposure to cryptosporidiosis at the Spraypark.
Pursuant to Article 9 of the CPLR, which governs class actions, reasonable
notice of the commencement of a class action is to be given to the potential
members of the class in a manner directed by the Court (CPLR § 904[b]).
Claimants contend, however, that in this matter notice should be provided to
potential claimants prior to class certification, due to the strict time
constraints for instituting a claim against the State provided by the Court of
Specifically, pursuant to Court of Claims Act § 10(3), a claim to recover
damages based upon negligence must be served and filed within 90 days after the
date of accrual of such claim, unless a notice of intention to file a claim is
served upon the Attorney General. The notice of intention, however, must also
be served within 90 days of accrual of such claim. Claimants therefore argue
that it is appropriate and necessary for the State to advise potential claimants
that either a claim or notice of intention must be served and/or filed to
protect their rights and their opportunity to participate in the class action
The Court of Claims, however, is a Court of limited jurisdiction. The Court
has no jurisdiction over actions demanding equitable relief, although it does
have such powers necessary to carry out its jurisdictional mandate (Court of
Claims Act § 9). The Court has the authority to grant equitable relief
only when such relief is incidental to a claim for money judgment (Psaty v
Duryea, 306 NY 413).
In this matter, the Court has reviewed all relevant statutory and case law,
including that submitted by claimants, and finds no authority upon which it may
grant the relief sought by claimants in this application.
Furthermore, even if it had the authority to grant the unique relief sought by
claimants in this application, the Court finds that it would not grant such
relief under the facts and circumstances existing herein. It is claimants'
contention that due to the time constraints set forth in Court of Claims Act
§ 10, the State should provide written notice to potential claimants
advising them of their potential claim, and further advising them of the
specific time requirements for instituting a claim against the State contained
in the Court of Claims Act. Otherwise, claimants maintain that numerous
potential claimants will be forever time-barred from joining the class, once
certified, due to their failure to either serve and file a claim, or serve a
notice of intention to file a claim, within 90 days of accrual of their claim.
It is apparent, however, that the vast majority of potential claimants who were
exposed to the cryptosporidium parasite are infants, and Court of Claims Act
§ 10(5) specifically permits a claim to be presented within two years after
the removal of a disability, such as infancy. The claim of any infant,
therefore, would be tolled pursuant to § 10(5), and would not be barred by
the limitations set forth in § 10(3).
Additionally, for any potential claims not affected by § 10(5), late claim
relief is available under Court of Claims Act § 10(6) for any potential
claimants who have not timely served and filed a claim, or timely served a
notice of intention.
In this Court's opinion,
the State would be hard-pressed to successfully contest the granting of late
claim relief under these circumstances, since it certainly has had notice of a
potential claim, the opportunity to investigate the potential claim, and would
be unable to establish any substantial prejudice should late claim relief be
Based on the foregoing, and after careful consideration of all of the papers
submitted herein and the points made at oral argument, it is
ORDERED, that Motion No. M-70742 is hereby DENIED; and it is further
ORDERED, that Cross-Motion No. CM-70755 is also DENIED, as moot.