New York State Court of Claims

New York State Court of Claims

THOMAS v. THE STATE OF NEW YORK, #2005-016-043, Claim No. 110001, Motion No. M-69924


Synopsis



Case Information

UID:
2005-016-043
Claimant(s):
GLORIA C. THOMAS as Administratrix of the Estate of ARTHUR A. THOMAS, Deceased, and GLORIA C. THOMAS, Individually The caption has been amended to reflect that the sole proper defendant is the State of New York.
Claimant short name:
THOMAS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect that the sole proper defendant is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110001
Motion number(s):
M-69924
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
The Jacob D. Fuchsberg Law Firm, LLPBy: Danielle George, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralNo Appearance
Third-party defendant's attorney:

Signature date:
June 15, 2005
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The underlying claim in this case alleges, inter alia, medical malpractice resulting in wrongful death in connection with the treatment of Arthur A. Thomas at the State University of New York Downstate Medical Center. This is claimant's motion for an order "[p]ursuant to Court of Claims [Act] §10 deeming the Amended Verified Claim that was filed by claimant on October 29, 2003[1] timely filed nunc pro tunc or in the alternative . . . [p]ursuant to Court of Claims [Act] §10 granting claimant permission to file an Amended Verified Claim . . ." Claimant also seeks an order compelling defendant to provide her with the complete name and last known address of a nurse who was allegedly dismissed from employment in connection with Mr. Thomas' death. Gloria Thomas served a notice of intention on October 29, 2003, listing herself as proposed administratrix of the estate of Arthur Thomas, and on December 31, 2003, she served an amended notice of intention after she had been appointed administratrix (the only difference between such documents is the reference to the appointment). On October 15, 2004, Ms. Thomas served her claim, which she filed with the Clerk of the Court on October 25, 2004. On February 8, 2005, Ms. Thomas served an amended claim, which she filed with the Clerk on February 17, 2005.

The relevant substantive differences among the aforementioned documents are as follows:
-- In the notices of intention, it is alleged that "[t]he claim arose from on or about April 6, 2003 through September 12, 2003, and prior and subsequent thereto at SUNY Downstate . . ." They also allege that Arthur A. Thomas died on September 12, 2003.
-- The original claim provides no date of death and makes no reference to an end date of treatment, stating only that "medical care and treatment [were] provided to the decedent on or about April 6, 2003, and prior and subsequent thereto."
-- The amended claim, like the original, also provides no date of death, but does refer to an end date of treatment, stating that treatment was provided "on or about April 6, 2003, through September 12, 2003 and prior and subsequent thereto."

In making this motion, claimant focuses on timeliness, apparently in response to defendant's affirmative defense that the Court lacks jurisdiction because the notice of intention was not served within 90 days of April 6, 2003.

However, assuming treatment did in fact occur through September 12, 2003, timeliness of the notice of intention does not appear to be an issue because, as to the causes of action other than wrongful death, the notice of intention served on October 29, 2003 was timely, at a minimum, with regard to the 90 days prior to October 29, 2003 and, should the doctrine of continuous treatment apply, to an earlier period. In addition, since the amended notice of intention was served within 90 days of appointment of an administratrix (see the Letters of Administration attached to claimant's moving papers as part of Exhibit B), it was timely as to the wrongful death action. See §§10.2 and 10.3 of the Court of Claims Act (the Act").

Thus, assuming the notices of intention were timely served, claimant then had, with regard to the non-wrongful death causes of action, two years from accrual to serve and file a claim, and as to the wrongful death cause of action, two years from the date of death to file and serve a claim. Two years from September 12, 2003 runs to September 12, 2005. See §§10.2 and 10.3 of the Act.

Rather than timeliness, what appear to be at issue in this case are the State's affirmative defenses based on §11.b of the Act, that the Court lacks jurisdiction because: (1) the claim fails to include any particularization of the nature of the cause of action and the defendant's conduct; and (2) the claim does not state the date of accrual of the wrongful death cause of action. The particularity requirements of §11.b of the Act are jurisdictional in nature. See, e.g., Lepkowski v State of New York, 1 NY3d 201, 207, 770 NYS2d 696, 700 (2003).

The issue of whether the claim is sufficient for the purposes of §11.b of the Act is not before the Court on this motion, however, if the claim does fail to comply with §11.b of the Act, such jurisdictional defect may not be cured by amending the claim. See, e.g., Grande v State of New York, 160 Misc 2d 383, 609 NYS2d 512 (Ct Cl 1994). However, since, as set forth above, the two-year period for service and filing of a claim has not yet run, Ms. Thomas would have until September 12, 2005 to serve and file a new §11.b-compliant claim, along with a filing fee pursuant to §11-a of the Act.
* * *
As to the nurse, claimant asserts that defendant refuses to provide such individual's first name and last known address. Defendant submitted no opposition papers on this motion and has thus provided no explanation as to why claimant is not entitled to such information.
* * *
For the foregoing reasons, having reviewed the submissions[2], IT IS ORDERED that motion no. M-69924 be denied except to the extent that within forty-five (45) days of the filing of this Decision and Order, defendant shall provide to claimant the first name and last known address of Nurse Ufumaka. IT IS FURTHER ORDERED that claimant shall use such name and address solely for the purposes of this litigation.


June 15, 2005
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]The amended claim was in fact served on February 8, 2005 – not on October 29, 2003, which happens to be the date of service of claimant's initial notice of intention. For the purposes of this motion, the Court will assume that claimant refers, in her request for relief, to the February 8, 2005 amended claim.
  2. [2]The Court reviewed claimant's notice of motion with affirmation in support and exhibits A through F. Defendant submitted no opposition papers.