New York State Court of Claims

New York State Court of Claims

MITCHELL v. SUNY Downstate Medical Center A.K.A. University Hospital of Brooklyn, #2005-016-045, Claim No. 109829, Motion No. M-69966


Claim was dismissed for lack of service.

Case Information

Claimant short name:
Footnote (claimant name) :

SUNY Downstate Medical Center A.K.A. University Hospital of Brooklyn
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Alan C. Marin
Claimant's attorney:
Lawrence C. Mitchell, Pro se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Ross N. Herman, Esq., AAG
Third-party defendant's attorney:

Signature date:
June 20, 2005
New York

Official citation:

Appellate results:

See also (multicaptioned case)


In his underlying claim here, Lawrence C. Mitchell alleges that on September 20, 2002, he suffered second degree burns on his side because hospital staff members at SUNY Downstate Medical Center failed to monitor a heating pad that had been placed under him during surgery. This motion is the Court's order to show cause why the claim should not be dismissed for failing to comply with the service requirements of §11 of the Court of Claims Act (the "Act"). Pursuant to §§10.3 and 11 of the Act, a claim such as this must be filed with the Clerk of the Court and served upon the Attorney General within 90 days of accrual. Alternatively, a notice of intention may be served on the Attorney General within 90 days, and then a claim served and filed within two years of accrual. In this case, it is undisputed that claimant failed to serve the Attorney General with either a claim or notice of intention within 90 days of September 20, 2002 (nor did claimant file a claim with the Clerk of the Court within 90 days).

"It is well established that compliance with sections 10 and 11 of the Court of Claims Act pertaining to the timeliness of filing and service requirements respecting claims and notices of intention to file claims constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State, and accordingly, must be strictly construed . . ." Byrne v State of New York, 104 AD2d 782, 783, 480 NYS2d 225, 227 (2d Dept 1984), lv denied, 64 NY2d 607, 488 NYS2d 1023 (1985) (citations omitted). See also Mallory v State of New York, 196 AD2d 925, 601 NYS2d 972 (3d Dept 1993). In short, this Court lacks jurisdiction over claim no. 109829.

Claimant may wish to move for permission to file a late claim pursuant to §10.6 of the Act, keeping in mind that such a motion cannot be granted if it is made after the relevant statute of limitations has expired. In this case, from what has been submitted, it appears that the two-and-one-half year statute of limitations for medical malpractice has expired. However, to the extent that this claim sounds in negligence, the limitations period is longer – three years, during which time a late claim motion would have to be made. See CPLR §§214 and 214-a and §10.6 of the Court of Claims Act.

For the foregoing reasons, having reviewed the submissions[1], IT IS ORDERED that motion no. M-69966 be granted and claim no. 109829 be dismissed.

June 20, 2005
New York, New York

Judge of the Court of Claims

  1. [1]Along with the Claim and the Court's order to show cause, the following were reviewed: Defendant's affirmation in response and claimant's submission received June 13, 2005.