ANWAR v. THE STATE OF NEW YORK, #2005-016-061, Claim No. 108813, Motion Nos.
Claim for medical malpractice was dismissed for failure to include the
total sum claimed.
In the Matter of the Claim of the Estate of MUHAMMAD ANWAR, Deceased, by SAIMA NASIR, as Administratrix and QALSOOM AKHTAR, individually as wife of the deceased
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
ALAN C. MARIN
Salenger, Sack, Schwartz & KimmelBy: Carolyn M. Caccese, Esq.
Eliot Spitzer, Attorney GeneralBy: Mary Y. J. Kim, AAG
September 20, 2005
AFFIRMED 41 AD3D 677 2D DEPT 6/19/07
See also (multicaptioned
On September 26 and 27, 2001, Muhammad Anwar underwent cardiothoracic
testing and surgery at SUNY Downstate Medical Center. Within days, on October
2, Mr. Anwar lapsed into a coma and remained that way until his death on May 25,
2003. Claim, ¶¶7 and 8. On January 5, 2004, Letters of Administration
were issued to Saima Nasir by the Surrogate of Kings County. Id.,
¶2. It is undisputed that the claim was then served and filed in a timely
fashion. However, the claim failed to include a total sum in damages.
Claimants moved first on the matter. Their notice of motion seeks an order
which would either permit the amendment of the claim to include a sum of damages
or to withdraw the claim and substitute the claim presented with the motion,
which specifies the amount of total damages. Defendant then cross-moved to
dismiss the claim, and opposed claimants’ request to amend or
Section 10 of the Court of Claims Act (the “Act”) governs the
time periods for filing and serving claims and notices of intention to file a
Subdivision a of §11 of the Act governs the methods of service and filing.
Subdivision b of such section covers the contents of the claim (and notice of
intention) and requires that the claim be verified.
§11(b) provides 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
Subdivision b provides that a notice of intention to file a claim shall set out
the same matters as a claim except that “the items of damage or injuries
and the sum claimed need not be stated.”
Subdivision c, when added
in 1990, required that an objection or defense based upon the failure of a claim
to comply with the time limitations of §10 of the Act or the service
requirements of subdivision a of §11 is waived unless raised in the answer
or by a pre-answer motion to dismiss. Subdivision c was recently amended: an
objection based on a missing or inadequate verification would also be deemed
waived if not objected to by defendant in its answer or pre-answer motion
(Chapter 460 of the Laws of 2005).
A result that would dismiss the claim of Anwar by Nasir solely for
the failure to set forth a total sum claimed is unfair - - but unavoidable. It
is unavoidable because of the line of Court of Appeals cases holding that the
requirements of §§10 and 11 of the Act are to be strictly construed
and that such requirements are jurisdictional. Claims with jurisdictional
defects cannot be revived except via late claim relief pursuant to §10.6 of
the Act. See, e.g., Manshul Construction Corp. v State Insurance
Fund, 118 AD2d 983, 500 NYS2d 87 (3d Dept 1986); Grande v State of New
York, 160 Misc 2d 383, 609 NYS2d 512 (Ct Cl 1994).
In Finnerty v New
York State Thruway Authority, 75 NY2d 721, 722-23, 551 NYS2d 188, 189-90
(1989) (citations omitted), the Court of Appeals upheld the dismissal of a late
claim because it was not served on the attorney general:
It is settled that the State as sovereign may not be sued except with its
consent, that it may attach such terms and conditions to its consent as the
Legislature deems proper, and that such terms and conditions are jurisdictional
requirements . . . and, therefore, must be strictly construed . . .
Similarly, the Court of Appeals upheld the dismissal of three claims for
failure to serve a copy of the claim as required by §11 of the Act, stating
that the statutory requirements of the Act conditioning suit must be
“strictly construed.” Dreger v New York State Thruway
, 81 NY2d 721, 724, 593 NYS2d 758, 759 (1992). In one of the three
cases decided together in Dreger
, the Thruway Authority was served, but
not the Attorney General; in the other two, the claims were mailed, but were not
sent by certified mail, return receipt requested, as §11 requires. See
also Lichtenstein v State of New York
, 93 NY2d 911, 913, 690 NYS2d 851,
Until recently, there had been no reported case in which
dismissal was based solely on the failure to include the total sum of damages;
in December of 2003, the Court of Appeals in Lepkowski v State of New
, 1 NY3d 201, 770 NYS2d 696, indicated that such result was necessarily
implied. The facts in Lepkowski
and the flaws in the pleadings there
were considerably different from those in the instant case. Mr. Lepkowski was
the lead claimant for several hundred State employees seeking recovery for
unpaid overtime compensation.
Court noted that
statutory requirements conditioning suit against the State “must be
strictly construed” and stated that, “[a]s relevant here, section 11
(b) places five specific substantive conditions upon the State’s waiver of
sovereign immunity by requiring the claim to specify (1) “the nature of
[the claim]”; (2) “the time when” it arose; (3) the
“place where” it arose; (4) “the items of damage or injuries
claimed to have been sustained”; and (5) “the total sum
claimed.” The Court found that the claims in question were
“jurisdictionally defective for nonconformity with section 11 (b)’s
substantive pleading requirements” in that they satisfied only item one --
the nature of the claim -- and failed to comply with the requirement of stating
time, place, items of damages and total sum claimed. 1 NY3d at 207-09; 770
NYS2d at 700-01.
According to the Court, “[t]hese claims were
required, at the very least, to specify the state agency or department for which
each claimant worked; the primary work location for each claimant; those work
weeks in which each claimant worked overtime; the actual number of hours of
overtime worked by each claimant during these work weeks; and the total sum of
damages sought by each claimant as unpaid overtime as of the date of
filing.” 1 NY3d at 208-09; 770 NYS2d at 701.
, a number of Court of Claims decisions came down in which it
was stated that each of the five items of §11(b), including total sum
claimed, must be specified. Kolnacki v State of New York
, Ct Cl, March
16, 2005 (unreported, claim no. 103121, motion no. M-69444, UID #2005-034-515,
; Cepeda v State of New York
, Ct Cl, May 9, 2005 (unreported,
claim no. 110547, motion no. M-69953, UID #2005-009-028, Midey, J.); Tessier
v State of New York,
Ct Cl, May 5, 2005 (unreported, claim no. 109692,
motion nos. M-69090 and CM-69544, UID #2005-018-467, Fitzpatrick, J.); McCabe
v State of New York,
Ct Cl, June 24, 2004 (unreported, claim no. 108925,
motion no. M-68263, UID #2004-015-413, Collins, J.); and Fardella v State of
, Ct Cl, March 30, 2004 (unreported, claim no. 108433, motion no.
M-67729, UID #2004-033-054, Lack, J.). Cf. Stewart v State of New York
Ct Cl, September 24, 2004 (unreported, claim no. 107914, motion nos. M-67585 and
CM-67642, UID #2004-013-047, Patti, J.).
It was observed above that the result of dismissing the claim of the
Estate of Mr. Anwar and the individual claim of his wife is unfair, but
unavoidable. It is not inappropriate here to discuss why the dismissal can be
characterized as unfair.
Since 1976, plaintiffs (but not
claimants in the Court of Claims) have been prohibited from specifying the
amount of damages in complaints for medical malpractice, because such a figure
chosen at an early stage of litigation is not necessarily grounded in facts and
can be prejudicial (CPLR 3017(c)). For similar reasons (since 1981), damages
were not permitted to be pled in actions against municipalities (counties,
cities, towns and villages).
By Chapter 694 of the Laws of
2003, the ban on damages in complaints (and related pleadings) was extended to
all personal injury and wrongful death actions, but permitted in opening and
Then, as if to emphasize how unmoored a statement of damages is from the facts
available - - until the end of a lawsuit, the following year, the law was
amended to allow references thereto only during closings. (Chapter 372, Laws of
2004, amending subdivision b of CPLR Rule 4016).
In this case,
claimants’ proposed new claim seeks $25 million in total damages, which
represents $10 million dollars in pain and suffering for the deceased Mr. Anwar,
$10 million for his distributees, and $5 million in loss of services for Ms.
Akhtar, the deceased’s wife
(claimants’ notice of motion,
exh E, ¶¶
34, 36, 37 & 38).
There is also a request
for $500,000 in medical bills (Id.
, ¶ 39).
As noted, under §11(b), the notice of intention to file a claim does
not require the total sum claimed (or the items of damage or injury). Yet under
§10.8 of the Act, a notice of intention without a total sum can, upon
application, ripen into a claim. Michael v State of New York
, Ct Cl, May
18, 2005 (unreported, motion no. M-68315, Marin, J.). This anomalous result
could be explained by simply concluding that such is a literal interpretation of
the Act. Interestingly, two Appellate Division cases, when faced with the same
issue, rather than rely on the literal terms of the statute, looked instead to
the limited utility of pleading damages. Barski v State of New York
AD2d 767, 350 NYS2d 762 (3d Dept 1973) and Liberty Mutual Insurance Company v
State of New York
, 121 AD2d 694, 504 NYS2d 138 (2d Dept 1986). Both cited a
Court of Claims case, McCabe v State of New York
, 58 Misc 2d 823 (1969),
to the effect that the sum claimed does not impact the defendant State’s
knowledge or ability to investigate. In fact, Lepkowski
stated that the
“guiding principle informing section 11(b)”
was whether the State was able to promptly investigate the claim and determine
its liability, citing a Fourth Department case, Heisler v State of New
, 78 AD2d 767, 433 NYS2d 646 (1980).
In view of the foregoing, having reviewed the parties’
IT IS ORDERED that the defendant’s cross-motion to dismiss is granted
(CM-70313); the claimants’ motion to amend their claim or substitute a new
one is denied (M-70072).
September 20, 2005
York, New York
HON. ALAN C. MARIN
Judge of the Court of Claims
Subdivision 6 of §10 permits the
filing of a late claim, and subdivision 8 of such section permits a notice of
intention to file a claim to ripen into a claim, but in either event, no later
than the applicable statute of limitations.
Subdivision b also requires the
itemization of any fixtures in an appropriation case.
and other decisions of the Court of Claims may be found on the Court’s
Court did take notice of this ban on including damages in
complaints from the 1976 enactment through Chapter 694 (see footnote 3, 1 NY3d
at 207, 770 NYS2d at 700).
1 NY3d at 207, 770 NYS2d at 700.
The Court reviewed: claimants’
notice of motion with affirmation in support and exhibits A through E;
defendant’s cross-motion with attached affirmation and exhibits A through
F; claimants’ Supplemental Affirmation; defendant’s reply
affirmation; and claimants’ reply affirmation.