New York State Court of Claims

New York State Court of Claims

McDONALD v. THE STATE OF NEW YORK, #2005-016-074, Claim No. 110116, Motion Nos. M-70523, CM-70804


Motion to dismiss pursuant to §11 of the Court of Claims Act for failure to sufficiently particularize was denied. Cross-motion relating to discovery issues was also denied.

Case Information

MARTIN McDONALD and MATTHEW McDONALD, by their Mother and Natural Guardian, MARCIA McDONALD and MARCIA McDONALD, Individually The caption has been amended to reflect that the sole properly named defendant is the State of New York.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect that the sole properly named defendant is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Alan C. Marin
Claimant's attorney:
Fitzgerald & Fitzgerald, P.C.By: John M. Daly, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Bridget E. Farrell, Esq., AAG
Third-party defendant's attorney:

Signature date:
December 5, 2005
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is defendant's motion to dismiss on the grounds that the claim is insufficiently specific for the purposes of §11 of the Court of Claims Act (the "Act"), fails to comply with §206.6(b) of the Uniform Rules for the Court of Claims, and fails to allege that there was a deviation from accepted medical practice which proximately caused claimants' injuries. Claimants cross-move for a variety of relief in connection with defendant's alleged failure to provide them with fetal heart monitor strips. The underlying claim arises from alleged medical malpractice in connection with the delivery of Martin and Matthew McDonald at SUNY Downstate Medical Center. 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." See Lepkowski v State of New York, 1 NY3d 201, 770 NYS2d 696 (2003). Defendant essentially argues that the claim in this case makes only "boilerplate" allegations of medical malpractice which are insufficient to enable the State to investigate the claim, citing, inter alia, Heisler v State of New York, 78 AD2d 767, 767-68, 433 NYS2d 646, 648 (4th Dept 1980), in which it was stated that "[c]onclusory 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.]"

While it is true here that the text of the claim itself is devoid of detail, it specifically refers to a previously served notice of intention,[1] which is attached to the claim and which the claim states is "made a part hereof." Claim, ¶5. A review of this incorporated notice of intention indicates that it contains all of the items required by §11.b of the Act, and meets the Heisler standard.[2]

As to claimants' cross-motion, the matters raised therein concern discovery and are more properly addressed at a conference, which will be scheduled by the Court.

For the foregoing reasons, having reviewed the submissions[3], IT IS ORDERED that motion nos. M-70523 and CM-70804 be denied.

December 5, 2005
New York, New York

Judge of the Court of Claims

  1. [1]The claim denominates the notice of intention – which itself has no title – as a "Notice of Claim."
  2. [2]With regard to defendant's remaining arguments, a review of the incorporated notice of intention indicates that it complies with §206.6(b) of the Uniform Rules; and a review of the claim indicates that it sufficiently alleges a cause of action for medical malpractice (see ¶¶11-13 thereof).
  3. [3]The Court reviewed: defendant's notice of motion with affirmation in support and exhibits A through C; claimants' notice of cross-motion with annexed affirmation and exhibits 1 through 16; and defendant's affirmation in opposition to cross-motion and in reply with exhibit A.