New York State Court of Claims

New York State Court of Claims

COUTARD v. THE STATE OF NEW YORK and UNIVERSITY HOSPITAL OF BROOKLYN, #2005-016-003, Claim No. 107965, Motion No. M-69280


Case Information

McKAYLA COUTARD by her mother and natural guardian CAMILLE ELLIS
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Joshua A. Schulman, LLCBy: Joshua A. Schulman, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: John J. Kelley, Esq., AAG
Third-party defendant's attorney:

Signature date:
January 21, 2005
New York

Official citation:

Appellate results:

See also (multicaptioned case)


According to the underlying claim, during the caesarean delivery of McKayla Coutard at Downstate Hospital[1] on May 1, 2003, the infant was "slashed across" the forehead (¶5).

Claimant has moved for the following relief:
1) Compelling the Office of the Attorney General . . . to accept service on behalf of Dr. Paulus Santoso, and

2) Deeming the annexed Summons and Complaint to have been timely served upon Dr. Paulus Santoso via the Office of the Attorney General . . . , or

3) Requiring The State . . . to indemnify and represent Dr. Paulus Santoso as though he were a Resident Physician at defendant's medical facility . . .

(Cl notice of motion, p.1).

The summons and complaint referred to in the second item are from the action in Supreme Court, Kings County (Index No. 10530/04) brought by the claimant against

Dr. Santoso and another named physician (cl affirm, exhs 1 and 2).

The jurisdiction of the Court of Claims extends to suits for personal injury and contract against the State of New York and, via explicit statutory authority, a handful of other public entities such as the New York State Thruway Authority (Public Authorities Law §361-b) and the senior colleges of the City University of New York (Education Law §6224). While an act or omission by one of its employees may be imputed to the State and serve as a basis for a claim of negligence against it, no jurisdiction in this Court comprehends any specific individual.

Service on the State of New York or one of specified entities is subject to very particular requisites and noncompliance is jurisdictionally fatal. See Dreger v State of New York, 81 NY2d 721, 593 NYS2d 758 (1992); and Brinkley v City University of New York, 92 AD2d 805, 460 NYS2d 53 (1st Dept 1983). No warrant lies to serve a named individual in the Court of Claims via the Attorney General.
Legislation enacted in 1992[2] provides that Section 17 of the Public Officers Law, which requires the State to defend and indemnify any State employee in a lawsuit arising from an alleged act or omission occurring during the course of employment, does not apply to physicians subject to the plan for the "management of clinical practice income as set forth in the policies of the board of trustees" of the State University (8 NYCRR Part 340). Even were there sufficient information in claimant's moving papers to determine whether Dr. Santoso is entitled to the benefits of Section 17, no authority has been presented to suggest that claimant has standing to seek such defense and indemnification or that a motion before this Court would be the appropriate vehicle to do so. See Frontier Insurance Company v State of New York, 197 AD2d 177, 610 NYS2d 647 (3d Dept 1994), affd 87 NY2d 864, 638 NYS2d 933 (1995); Frontier Insurance Company v State of New York, 299 AD2d 600, 748 NYS2d 882 (3d Dept 2002); and see generally, Court of Claims Act §9.9-a.
In view of the foregoing, and having reviewed the submissions of the parties[3], claimant's motion (M-69280) is denied.

January 21, 2005
New York, New York

Judge of the Court of Claims

[1]More fully, this is the University Hospital, Health Science Center, State University of New York at Brooklyn.
[2] Section 16 of Chapter 499 added subdivision 11 to Public Officers Law §17.
[3] These submissions were: 1) from claimant, a Notice of Motion together with an Affirmation and appended thereto, Exhibits 1 through 4; and 2) from defendant, an Affirmation in Opposition and appended thereto, Exhibits A though E.