New York State Court of Claims

New York State Court of Claims

PLASKOWITZ v. THE STATE OF NEW YORK, #2005-016-050, Claim No. 98142, Motion No. M-69708


Synopsis



Case Information

UID:
2005-016-050
Claimant(s):
HARRY PLASKOWITZ, individually and as father and natural guardian and Administrator of the Estate of DENNIS PLASKOWITZ The caption has been amended to reflect that the sole proper defendant is the State of New York.
Claimant short name:
PLASKOWITZ
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):
98142
Motion number(s):
M-69708
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Jeffrey J. Shapiro and Associates, LLCBy: Jeffrey B. Bromfeld, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Ellen Matowik, Esq., AAG
Third-party defendant's attorney:

Signature date:
August 22, 2005
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

This claim alleges that on October 3, 1996, while a resident at the Brooklyn Developmental Center, Dennis Plaskowitz was administered an overdose of medication which caused his death that day. Defendant has moved for an order dismissing the claim on the ground that the Court lacks jurisdiction, arguing that: (1) as to a cause of action for conscious pain and suffering, the claim was untimely filed and served; and (2) as to a cause of action for wrongful death, the claim was improperly served and fails to comply with §11.b of the Court of Claims Act (the "Act") in that it does not state the date on which Harry Plaskowitz was appointed Administrator of Dennis Plaskowitz's estate. The claim was filed with the Clerk of the Court on April 13, 1998. It was served four times as follows:
(1) On March 25, 1998, it was served on the Office of the Attorney General in New York City by registered mail, return receipt requested;
(2) On March 26, 1998, it was served on the Office of the Attorney General in Albany by registered mail, return receipt requested;
(3) On March 30, 1998, it was served on the New York State Office of Legal Affairs of the Department of Transportation in Albany, by registered mail, return receipt requested; and
(4) On April 27, 1998, it was personally served at the Office of the Attorney General in New York City.

As to a cause of action for conscious pain and suffering, §10.3 of the Act requires that within ninety days of accrual, either a claim be served and filed, or a notice of intention be served. In this case, it is undisputed that such was not done within 90 days of October 3, 1996, and claimant concedes that to the extent the claim alleges conscious pain and suffering, it was untimely.

"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). Accordingly, the Court lacks jurisdiction over this claim to the extent it alleges conscious pain and suffering.

As to the wrongful death cause of action, §10.2 of the Act provides that the claim must be served and filed within 90 days of appointment of an executor or administrator, but in no event later than two years after death (or, in the alternative, a notice of intention may be served within 90 days and then the claim served and filed within two years). The administrator in this matter was appointed on January 30, 1998. See exhibit A to claimant's opposition papers. The April 27, 1998 personal service, an authorized method of service under the Act, was performed within 90 days of the January 30, 1998 administrator appointment and within two years of Dennis Plaskowitz's October 3, 1996 death. Accordingly, defendant's argument that registered mail, return receipt is improper need not be reached.

Finally, defendant argues that the claim fails to comply with §11.b of the Act in that it does not state the date of appointment of the administrator. Section11.b provides in relevant part that:
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.


Defendant has cited no case authority suggesting that such requires a statement of the date of appointment of the administrator.

In view of the foregoing, having reviewed the submissions[1], IT IS ORDERED that motion no. M-69708 be granted in part and denied in part in that claim no. 98142 shall be dismissed only to the extent it alleges a cause of action for conscious pain and suffering.



August 22, 2005
New York, New York

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




[1]The following were reviewed: defendant's notice of motion with affirmation in support and exhibits A through F; claimant's affirmation in opposition with exhibits A through D; and defendant's affirmation in reply.