New York State Court of Claims

New York State Court of Claims

JENKINS v. THE STATE OF NEW YORK, #2005-028-502, Claim No. 109184, Motion No. M-68489


Case Information

RONALD JENKINS, Jr. and GRACE JENKINS, Individually and as Administrators of the Estate of BRIAN JENKINS
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: G. Lawrence DillonAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 7, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Defendant's timely pre-answer motion to dismiss the Claim pursuant to CPLR 3211:

  1. Notice of Motion and Supporting Affirmation of Assistant Attorney General G. Lawrence Dillon (Dillon Affirmation) filed May 11, 2004 with annexed
Exhibits A-F;

2) Opposition Papers: NONE.[1]

Filed Papers: Verified Claim filed April 14, 2004.

This is Defendant's motion to dismiss on the grounds that the claim herein was untimely for the purposes of the relevant statute of limitations and the Court of Claims Act; fails to state a cause of action and fails to contain a CPLR §3012-a certification. Claimant has defaulted upon the motion.

In the underlying claim, it is alleged that the care provided to Brian Jenkins commencing in April 2000 through July 21, 2001 by Defendant's Department of Correctional Services constituted medical malpractice and resulted in his death on April 16, 2002. The alleged malpractice was the failure of Defendant to diagnose Claimant's lung cancer until early May 2000 when Claimant was seen at the Albany Medical Center Hospital.

"'Because suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed'" (Lichtenstein v State of New York, 93 NY2d 911, 913, quoting Dreger v New York State Thruway Auth., 81 NY2d 721, 724). Initially, to the extent that the Claim herein alleges conscious pain and suffering caused by medical malpractice, such is governed by §10(3) of the Court of Claims Act (Pelnick v State of New York, 171 AD2d 734; Putnam v State of New York, Ct Cl, Corbett, J., Claim No. 102853, UID #2001-009-053, December 12, 2001), which holds that unlike a wrongful death claim, a conscious pain and suffering claim must be filed and served within 90 days of accrual or, in the alternative, a notice of intention must be served within 90 days of accrual and the claim then filed and served within two years. In this case, Claimant's decedent was treated until July 21, 2001 by Defendant's medical staff and, for purposes of this motion, will be presumed to be the beneficiary of the continuous treatment doctrine (see generally Nykorchuck v Henriques, 78 NY2d 255; Toxey v State of New York, 279 AD2d 927). Even afforded that benefit, the Claim, served on April 12, 2004 and filed on April 14, 2004, was untimely.

To the extent the claim alleges wrongful death, §10(2) of the Court of Claims Act provides in relevant part that:
A claim by an executor or administrator of a decedent . . . for damages for a wrongful act, neglect or default, on the part of the state by which the decedent's death was caused, shall be filed and served upon the attorney general within ninety days after the appointment of such executor or administrator . . . In any event such claim shall be filed and served upon the attorney general within two years after the death of the decedent.

(See also EPTL §5-4.1; Howard v State of New York, 175 AD2d 634). As Defendant notes, the Claimants do not provide the Court with the date of their appointment (Dillon Affirmation ¶ 9). However, contrary to Defendant's assertion, on this record the Court is precluded from finding the Claim for wrongful death untimely filed as the moving party has not carried its burden (see Sheinbaum v State of New York, 101 Misc 2d 250).

Notwithstanding the foregoing, Defendant's further basis for dismissal, that the Claim fails to state a cause of action, is correct. Even affording the pleadings a liberal construction, accepting claimants' allegations as true and according them the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88), Claimants have failed to demonstrate that they have a cause of action. To succeed on this claim, which sounds in medical malpractice, claimants must allege, inter alia, that the physician(s) deviated from accepted medical practice and that the alleged deviation proximately caused the injuries (see Fridovich v David, 188 AD2d 984, 985). In this case, Claimants have failed to allege that the deviation(s) proximately caused the decedent's injuries (see Parker v State of New York, 242 AD2d 785).

Accordingly, the pleadings are clearly deficient and the Claim, which is unsupported by any CPLR 3012-a document from which the missing element might be inferred, is properly dismissed.

By virtue of the foregoing, Defendant's motion is hereby granted and Claim No. 109184 shall be and hereby is dismissed.

January 7, 2005
Albany, New York

Judge of the Court of Claims

[1] The Court had granted Claimant's counsel an adjournment of the return date of this motion.