New York State Court of Claims

New York State Court of Claims

O’SHEA v. THE STATE OF NEW YORK, #2005-016-066, Claim No. 101626, Motion No. M-70462


Synopsis




Appellate Result:
Affirmed 2d Dept, 1/16/07, 36 AD3D 706

Case Information

UID:
2005-016-066
Claimant(s):
MICHAEL O’SHEA and DIEDRE O’SHEA
Claimant short name:
O’SHEA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101626
Motion number(s):
M-70462
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant’s attorney:
Sullivan Papain Block McGrath & Cannavo P.C.By: Eric K. Schwarz, Esq.
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: Joseph L. Paterno, Esq., AAG
Third-party defendant’s attorney:

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

Official citation:

Appellate results:
Affirmed 2d Dept, 1/16/07, 36 AD3D 706
See also (multicaptioned case)



Decision

In this action, it is alleged that defendant’s delay in treating Michael O’Shea at the State University of New York at Stonybrook Hospital resulted in the inability to reattach two of his fingers which had been severed in an accident. This is defendant’s motion to dismiss on the grounds that the claim as filed and served (the “Claim”): (1) is not the same as the proposed claim submitted in connection with claimants’ previous motion for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the “Act”); (2) is insufficiently particular for the purposes of §11.b of the Act; and (3) fails to state a cause of action for negligent hiring and supervision. Claimants’ motion for permission to file a late claim was granted in an order dated October 19, 1999. O’Shea v State of New York, Ct Cl, October 19, 1999 (unreported, motion no. M-59853, Marin, J.), affd 278 AD2d 237, 717 NYS2d 293 (2d Dept 2000). Accompanying such motion was a proposed claim, which alleged, inter alia, that:
[Michael O’Shea] traumatically amputated his left third and fourth digits while working at home on a table saw. Claimant presented himself at the hospital with his fingers, packed in ice. [Defendant] . . . was negligent and departed from good and accepted standards of medical practice, in failing to timely treat the claimant; . . . in failing to perform adequate tests in a timely fashion; in failing to timely diagnose his true condition; in failing to order appropriate diagnostic tests in a timely fashion; in failing to give proper, adequate and timely treatment . . .


The Claim is different from the proposed claim and while making vague and general references to medical malpractice, provides no specifics, e.g., does not even make reference to injured fingers (although it does contain a total sum claimed).

Section 11.b of the Act provides that a “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.” The purpose of §11 “is to give the State prompt notice of an occurrence and an opportunity to investigate the facts . . .” Cannon v State of New York, 163 Misc 2d 623, 626, 622 NYS2d 177, 179 (Ct Cl 1994). From what was stated in the Claim, it is impossible to determine what happened or how the State was allegedly at fault. “Conclusory or general allegations . . . that fail to adduce the manner in which the claimant was injured and how the State was negligent do not meet [the] requirements [of §11 of the Act.]” Heisler v State of New York, 78 AD2d 767, 767-68, 433 NYS2d 646, 648 (4th Dept 1980). In short, the Claim fails to meet the particularity requirements of §11.b of the Act.[1]

Defendant does not argue that the proposed claim annexed to claimants’ late claim motion papers was insufficient for the purposes of §11.b. A review of such proposed claim reveals that it does comply with §11.b, with one exception – it fails to state the total sum claimed, one of the five items specifically set forth in §11.b. 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 requirements of §11.b where the claim was served and filed following the granting of a late claim motion under §10.6 of the Court of Claims 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); and Griffin v John Jay College, 266 AD2d 16, 697 NYS2d 278 (1st Dept 1999). Thus, under the circumstances of this case, claimants are entitled to serve and file an amended claim in the form of the proposed claim submitted with their late claim papers, with the addition of a total sum claimed.

Accordingly, having reviewed the submissions,[2] IT IS ORDERED that motion no. M-70462 be denied. IT IS FURTHER ORDERED that within thirty (30) days of the filing of this Decision and Order, claimants shall file and serve an amended claim in the form of the proposed claim submitted with their previous late claim motion, with the addition of a total sum claimed.


November 18, 2005
New York, New York

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





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  1. [1]
    In view of such finding, the Court will not address defendant’s argument that the Claim fails to state a cause of action for negligent hiring and supervision.
  2. [2]
    The following were reviewed: defendant’s notice of motion with affirmation in support and exhibits A through J; claimants’ affirmation in opposition with exhibits A and B; and defendant’s reply affirmation with exhibit A.