New York State Court of Claims

New York State Court of Claims

Tessier v. STATE OF NEW YORK, #2005-018-467, Claim No. 109692, Motion Nos. M-69090, CM-69544


Synopsis


Defendant's motion is granted, the claim is dismissed. Claimant's cross-motion is denied.

Case Information

UID:
2005-018-467
Claimant(s):
JACALYN TESSIER, As Administratrix of the Estate of MONICA S. BRISTOL, Deceased
Claimant short name:
Tessier
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109692
Motion number(s):
M-69090
Cross-motion number(s):
CM-69544
Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
SHANLEY LAW OFFICESBy: P. Michael Shanley, Esquire
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: Michael R. O'Neill, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 5, 2005
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant brings a motion to dismiss the claim on the ground that the notice of intention

and the claim fail to set forth the minimum requirements of § 11(b) of the Court of Claims Act. Claimant opposes the motion and makes a cross-motion for permission to amend the claim.

On December 5, 2002, a notice of intention was sent certified mail, return receipt requested, to the Attorney General's Office. There is no dispute that the notice of intention was timely received. This notice of intention reflected the "Estate of Monica Bristol" as Claimant and was signed by Jacalyn Tessier, prior to her appointment as a representative of the estate. Thereafter an amended notice of intention was served upon the Attorney General on April 21, 2003, reflecting that Claimant, Jacalyn Tessier, was appointed as the Administrator of the Estate of Monica S. Bristol, Deceased. The amended notice of intention contained the same information as the original notice of intention, except for the change of Claimant.

The notice of intention[1] provides as follows:

Monday, September 9, 2002, in Parish, New York, the Claimant

Monica Bristol was shot in the chest with a shotgun. When the

State Police arrived they negligently delayed or otherwise were

delinquent in obtaining medical attention for Ms. Bristol.


Ms. Bristol was brought to State University of New York Medical Center (aka: University Hospital at SUNY and/or SUNY Upstate). Due to the negligence of State University of New York Medical Center and/or their agents, servants and/or employees, inter alia, failing to adequately diagnose, failing to provide proper care and proper treatment, failure to properly assess Ms. Bristol's condition and failure to perform proper tests and other procedures, she died.


Defendant argues that the notice of intention fails to provide information regarding what cause or causes of action may be involved, specifically, wrongful death or conscious pain and suffering. Defendant further argues that the notice of intention asserts only generally that the State Police and medical personnel at Upstate were negligent but fails to provide the State with real notice of what the State did wrong. Defendant maintains that the actions of the State Police cannot be negligent in the absence of a special duty owing to the decedent. No special duty is alleged and Defendant suggests that none can be inferred based upon the facts as set forth in the notice of intention and claim. Defendant also states that the Certificate of Merit attached to the claim is insufficient to meet the requirements of CPLR 3012-a because the statement of Claimant's attorney does not indicate any consultation with a physician.

Claimant, in opposition to Defendant's motion, argues that the notice of intention complies with Court of Claims Act § 11(b), providing date, time, and location and provides sufficient information to allow the State to timely investigate the potential claim. The information was sufficient to permit the State to obtain decedent's medical records and the records of the State Police relating to the investigation into this incident. The original notice of intention was served by decedent's next-of-kin, prior to her appointment as Administrator of the Estate, in order to meet the time restrictions of § 10 of the Court of Claims Act, and as soon as Ms. Tessier was appointed, an amended notice of intention was served.

In the Court of Claims, compliance with the requirements of §§ 10 and 11 of the Court of Claims Act are mandatory jurisdictional prerequisites to bringing an action against the State (Phillips v State of New York, 237 AD2d 590; Kaplan v State of New York, 152 AD2d 417; Trayer v State of New York, 90 AD2d 263). Court of Claims Act § 11(b) requires the following to be contained in a claim: (1) time when the claim arose; (2) the place where the claim arose; (3) the nature of the claim; (4) the items of damage or injuries alleged to have been sustained; and (5) the total sum claimed (Court of Claims Act § 11[b]; Lepkowski v State of New York, 1 NY3d 201, 207). A notice of intention must state the same, except the items of damage or injuries and the total sum claimed need not be stated. A notice of intention, unlike a claim, need not set forth all of the facts necessary to state a cause of action, but it must at least set forth the "general nature of the claim" and aptly advise Defendant of the way Claimant was injured and what the State did wrong in order to allow the State to evaluate its potential liability (Sega v State of New York, 246 AD2d 753, 755, lv denied 92 NY2d 805; Epps v State of New York, 199 AD2d 914; Heisler v State of New York, 78 AD2d 767, 767-768).

The notice of intention and the "amended notice of intention" adequately comply with Court of Claims Act § 11(b). Since a notice of intention does not serve the same function as a claim, it does not have to meet the more stringent pleading requirements. Both notices of intention advise what Claimant will be alleging the State did wrong in order for it to begin investigating its potential liability.

The original notice of intention was signed by Jacalyn Tessier, mother of the decedent, prior to her appointment as Administratrix of the Estate. At that time, Ms. Tessier had no authority to commence an action on behalf of her daughter's estate. A notice of intention, however, is not a pleading and does not commence the action it only serves to alert the Defendant that an action may be commenced based upon the facts as set forth. For these reasons "anyone can file a notice of intention" and Ms. Tessier was an appropriate person to serve this notice of intention (Johnson's Estate v State of New York, 49 AD2d 136, 137; Jones v State of New York, 69 AD2d 936, affd 51 NY2d 943; DeFilippis v State of New York, 157 AD2d 826, 827). In fact, if she had waited until she had been issued Letters of Administration on behalf of the estate, almost five months later, any notice of intention would have been untimely for a personal injury cause of action since Court of Claims Act § 10(3) requires that a claim for personal injuries caused by negligence must be served and filed or a notice of intention served within 90 days of the date of accrual.

The amended notice of intention was served by Ms. Tessier on April 21, 2003, after she was issued Letters of Administration on February 4, 2003. The amended notice of intention was timely served within 90 days of the date she was appointed Administrator of her daughter's estate in accordance with Court of Claims Act § 10(2) for a wrongful death cause of action.

Accordingly, these notices of intention preserved Claimant's right to file and serve a properly prepared claim upon Defendant within two years of the date of accrual (for a personal injury cause of action, Court of Claims Act § 10[3]) and the date of death (for a wrongful death cause of action, Court of Claims Act § 10[2]), which in this case were the same date. Thus, Claimant had to file and serve a claim in accordance with Court of Claims Act §§ 10 and 11 by September 9, 2004.

On August 5, 2004, Claimant timely filed and served a claim upon the Defendant. Defendant asserts that this claim, however, also fails to comply with the requirements of Court of Claims Act § 11(b). The claim, unlike the notice of intention, must set forth all five components required by § 11(b) as set forth above. The burden to meet the pleading requirements is Claimant's, and Defendant has no obligation to ferret out from investigation or other documents additional facts or information which should have been included in the claim (see Lepkowski, 1 NY3d at 208; Grande v State of New York, 160 Misc 2d 383, 386).

The claim contains no more information than was provided in the notice of intention. There is no description of the injuries and damages sustained or the total sum claimed, and thus as a result, the claim fails to comply with Court of Claims Act § 11(b) (see, Kolnacki v State of New York, Ct Cl, Hudson, J., filed April 6, 2005, Claim No. 103121, Motion No. M-69444; Shabazz v State of New York, Ct Cl, Midey, J., filed September 27, 2004,Claim No. 109114, Motion No. M-68390; McCabe v State of New York, Ct Cl, Collins, J., Claim No.108925, Motion No. M-68263, UID #2004-015-413). The failure to provide any of the five elements of information required by Court of Claims Act § 11(b) results in a fatal jurisdictional defect (Lepkowski, 1 NY3d at 208-209).

Claimant seeks to circumvent any pleading deficiency by bringing a cross-motion for permission to amend the claim. Although the timely and properly served notice of intention invoked the jurisdiction of the Court and gave Claimant two years within which to file and serve a proper claim, that is a claim that complies with §§ 10 and 11 of the Court of Claims Act, no proper claim was filed and served within that time. As a result, to grant Claimant's request to amend the claim after the expiration of the two years would permit by amendment the correction of a jurisdictional defect. A jurisdictional defect cannot be cured by amendment (see Grande, 160 Misc 2d 383). If the motion to amend had been made before the expiration of the two years from the date of accrual, permission to amend could have been granted because at that juncture any defect in the claim would not affect the Court's jurisdiction.

Even beyond the jurisdictional defects, Claimant failed to set forth a valid cause of action against the State for the actions of the State Police. The question of the State's liability for the failure of the State Police to obtain medical assistance for an injured party when responding to the scene of a shooting incident arises within the context of the governmental function of providing police protection (Sandstrom v Rodriguez, 221 AD2d 513, 514). Without any allegations that the State Police failed to follow established procedures or protocol, the discretionary determinations of the State Troopers responding to the scene of this shooting in prioritizing or assessing their obligations at the scene are not actionable (see Lauer v City of New York, 95 NY2d 95, 99; Kenavan v City of New York, 70 NY2d 558, 569; Lubecki v City of New York, 304 AD2d 224; DiFlorio v Worden, 303 AD2d 924, 925; Rodriguez v City of New York, 189 AD2d, 166, 173-175). In carrying out its governmental function of providing police protection the State is not liable for the failure to "exercise perfect judgment," (see Kenavan, 70 NY2d at 569; Harland Enters. v Commander Oil Corp., 64 NY2d 708, 709).

Moreover, to establish liability for the performance of a governmental function, there must be a special duty owing to the injured party, beyond the duty owed to the public-at-large (Lauer, 95 NY2d at 99; Sandstrom, 221 AD2d at 514). Here, no special duty was alleged, and the facts as set forth in the claim do not suggest the elements of a special duty existed.

Accordingly, based upon the foregoing, the Defendant's motion is GRANTED, and the claim is DISMISSED. Claimant's cross-motion is DENIED.


May 5, 2005
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding these motions:


Notice of Motion.................................................................................................1


Affirmation of Michael R. O'Neill, Esquire, Assistant Attorney

General, in support, with exhibits attached thereto.................................2


Affidavit of P. Michael Shanley, Esquire, in opposition, with exhibits

attached thereto........................................................................................3


Notice of Cross-Motion........................................................................................4


Affidavit of P. Michael Shanley, Esquire, in support with exhibits

attached thereto.........................................................................................5


Affirmation of Michael R. O'Neill, Esquire, Assistant Attorney

General, in opposition to Claimant's cross-motion and in support of

Defendant's motion to dismiss with exhibit attached thereto...................6




[1] Both the original and the amended.