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”).
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.
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.
claimant’s cross-motion, the matter raised therein concerns discovery and
is more properly addressed at a conference, which will be scheduled by the
Accordingly, having reviewed the submissions,
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.