New York State Court of Claims

New York State Court of Claims
BECKLEY-KAMARA v. THE STATE OF NEW YORK, #2005-016-060, Claim No. 110488, Motion Nos. M-69949, CM-70010
Synopsis


Case Information
UID:
2005-016-060
Claimant(s):
MEMUNA BECKLEY-KAMARA, a mentally incompetent person by MARIAMA YILLA, her guardian ad litem
Claimant short name:
BECKLEY-KAMARA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110488
Motion number(s):
M-69949
Cross-motion number(s):
CM-70010
Judge:
Alan C. Marin
Claimant’s attorney:
Zucker & Ballen, P.C.By: Gary A. Zucker, Esq.
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: Ross N. Herman, Esq., AAG
Third-party defendant’s attorney:

Signature date:
November 18, 2005
City:
New York
Comments:

Official citation:

Appellate results:
AFFIRMED 35 AD3D 774 2D DEPT 2006
See also (multicaptioned case)



Decision

This is defendant’s motion to dismiss on the ground that the claim fails to comply with the requirements of §11.b of the Court of Claims Act (the “Act”).
[1]
Claimant opposes and cross-moves for an order directing defendant to furnish her with a copy of Memuna Beckley-Kamara’s SUNY Downstate Medical Center records. The underlying claim alleges that because of defendant’s medical malpractice, Ms. Beckley-Kamara was “caused to sustain hypoxic brain damage and other serious injury.” The claim was served and filed following the Court’s January 21, 2005 Decision and Order, which granted claimant’s motion for permission to file a late claim pursuant to §10.6 of the Act. Section 11.b of the Act provides in relevant part that “[t]he 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 contends that in this case, the claim fails to state three of such items: the nature of the claim, the items of damage or injuries, and the total sum claimed.
In Lepkowski v State of New York, 1 NY3d 201, 770 NYS2d 696 (2003), the Court of Appeals upheld the dismissal of a claim that did not contain all such five items. However, current authority does not limit the Court’s ability to ensure compliance with the requirement of stating all five items where the claim was served and filed following the granting of a late claim motion under §10.6 of the Act. See, e.g., Kerai v State of New York, Ct Cl, filed June 8, 2000 (unreported, claim no. 93387, motion nos. M-60851 and CM-61020, Marin, J.); Shimmerlik v City University of New York, 142 Misc 2d 118, 536 NYS2d 380 (Ct Cl 1988), affd 154 AD2d 959, 546 NYS2d 506 (1st Dept 1989); Griffin v John Jay College, 266 AD2d 16, 697 NYS2d 278 (1st Dept 1999). Thus, under the circumstances of this case, claimant is entitled to serve and file an amended claim which includes the missing items required by §11.b of the Act.
It is undisputed that the claim here does not state the total sum claimed. As to the nature of the claim, it states only that “[t]he medical care and treatment rendered to Memuna Beckley-Karmara by the defendant . . . failed to conform with good and accepted medical and hospital practice . . . , ” with no elaboration. The expert affirmation submitted on claimant’s late claim motion contained significantly more specific information as to how defendant allegedly departed from good and accepted medical and hospital practice. I find that the claim as served and filed does not adequately describe the nature of the claim for the purposes of §11.b of the Act. As to the items of damage or injury, the claim specifically alleges that defendant’s malpractice caused Memuna Beckley-Kamara “to sustain hypoxic brain damage and other serious injury.” Such is sufficient for the purposes of §11.b.
As to claimant’s cross-motion, the matter raised therein concerns discovery and is more properly addressed at a conference, which will be scheduled by the Court.
Accordingly, having reviewed the submissions,
[2]
IT IS ORDERED that motion no. M-69949 and cross-motion no. CM-70010 be denied. IT IS FURTHER ORDERED that within sixty (60) days of the filing of this Decision and Order, claimant shall serve and file an amended claim which includes the nature of the claim and the total sum claimed.

November 18, 2005
New York, New York

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




  1. [1]Defendant also asserts that the claim fails to comply with the requirements of §206.6(b) of the Uniform Rules for the Court of Claims.
  2. [2]The Court reviewed: defendant’s notice of motion with affirmation in support and exhibits A through E; claimant’s affirmation in opposition with exhibit A; and claimant’s notice of cross-motion with affirmation in support.