New York State Court of Claims

New York State Court of Claims

MANO v. THE STATE OF NEW YORK, #2005-030-919, Claim No. 109737, Motion No. M-69717


Case Information

KENYA MANO, an infant under age of 14 years by her mother and natural guardian, KATHLEEN MANO LAZARE and KATHLEEN MANO LAZARE, individually
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:
Asher & Associates, Stacy N. Baden, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby Ross N. Herman, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 1, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The court read and considered the following papers on defendant's motion to dismiss the claim: Notice of Motion, Affirmation and Exhibits; Affirmation in Opposition and Exhibits, Reply Affirmation and Exhibits.

This instant claim, sounding in medical malpractice, was filed on August 18, 2004. Although the caption names Kathleen Mano Lazare as claimant both as parent of Kenya Mano, an infant who was born on August 18, 1994, and in her individual capacity, the claim contains no information as to what damages were suffered by either individual. Nevertheless, since the events related in the claim all occurred in 1994, it is clear that any cause of action that the adult claimant may have possessed on her own behalf was time-barred years before this claim was filed (Court of Claims Act §§ 10(3), 10(6), CPLR 214-a). Nevertheless, the claim is timely as to Kenya Mano, who remains an infant.

The basis of defendant's motion to dismiss is the contention that the claim fails to comply with the requirements of Court of Claims Act §11(b) and that the court therefore lacks jurisdiction. That provision requires that a claim 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 these requirements is to provide the defendant with prompt (i.e., within the relatively short periods set forth in §10) notice of the pertinent allegations " ‘to enable the state . . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances,' which is the guiding principle informing section 11 (b)" (Lepkowski v State of New York (1 NY3d 201, 207, quoting Heisler v State of New York, 78 AD2d 767, 767).

The claim herein alleges that the mother of the infant claimant was provided with prenatal care "commencing on or about March 5, 1994 "; that she was admitted to Downstate Medical Center on or about August 18, 1994; that the infant claimant was delivered on August 18, 1994; and that "as a result of the foregoing, including the medical diagnosis, care and treatment during the prenatal, labor, delivery and perinatal periods, the infant claimant sustained severe injuries and complications." That is the sum total of the allegations concerning medical malpractice.

The claim further alleges that the defendant's employees "failed to inform the mother of the infant claimant of the risks, hazards and alternatives connected with the procedures utilized in the pregnancy, labor and delivery, so that an informed consent could be given." Nothing further is mentioned with respect to informed consent.

In a third cause of action, claimant alleges that the defendant "failed to investigate the qualifications, competence, capacity, abilities and capabilities of said defendants, residents, nurses and other employees." No such employees are identified.

Nothing further of substance is alleged in the claim, other than that the events took place at Downstate Medical Center and that the "claim accrued between the period commencing on or about March 1, 1994 through and including August 18, 1994."

If, as the Court of Appeals reaffirmed in Lepkowski, the "guiding principle informing section 11(b)" is whether a claim provided sufficient information to enable an investigation and evaluate the state's potential liability, the instant claim fails the test. Read literally, the claim alleges that each and every item of treatment rendered to claimant over a five and one-half month period, encompassing prenatal care and delivery, caused injury to the infant claimant. The claim does not even allege that there was anything wrong with the care rendered during that period, not that it would have affected the court's analysis if it had. There is no way that anyone reading this claim could have even the hint of what it is that claimant alleges was done wrong, much less even begin to conduct an intelligent investigation.

All of the decisions relied on by claimant for the proposition that §11(b) does not require a great amount of particularization are inapposite. In particular, in Matthias v State of New York (Ct Cl, unreported decision dated January 20, 2005, UID No. 2005-030-902), this court noted that "the allegation that a state employee [who was named in the claim] was involved in an [automobile] accident with a claimant at a specified place and time and that the accident was the result of the negligence of the state employee in the operation of the state vehicle sufficiently sets forth the ‘nature' of the claim so as to afford the opportunity for a prompt and complete investigation and it therefore complies with [§11(b)]." This is in no way comparable to the allegation that claimant received treatment over a five and one-half month period and that as the result of that treatment her child suffered injuries, with no further indication whatsoever of the nature of the claim (accord, Sinski v State of New York, 265 AD2d 319 [where the claim was held to be adequate]: "claimant alleged that the defendant had negligently failed to install adequate warning signs, road markings, or traffic lights at the intersection, even though there had been frequent accidents at the site"; Sega v State of New York, 246 AD2d 753 [where the claim was dismissed]: "Moreover, the notice failed to provide a general nature of the claim * * * with not even a hint indicating ‘the manner in which the claimant was injured and how the State was negligent' [Heisler v State of New York, 78 AD2d 767, 767-768]").

Similar to the malpractice cause of action, the alleged informed consent cause of action, as pleaded herein, would cover each and every procedure performed during the five and one-half month period. Claimant was not informed of the risks of everything done during that time, and had she been so informed, she would not have consented to anything? How can one argue that such a broad allegation provides notice and the opportunity to investigate? And again, the allegations with respect to negligent hiring cover each and every state employee who rendered treatment to the claimants over five and one-half months. Like all of the other allegations in this claim, it is so general and all-encompassing as to be meaningless.

Since it is clear that the instant claim utterly fails to set forth its nature within the meaning of §11(b), it must be, and hereby is, dismissed, without prejudice to a motion pursuant to Court of Claims Act §10(6) if claimant is so disposed (see Alberti v State of New York, Ct Cl, unreported decision dated September 30, 2004, Lack, J., UID No. 2004-033-083). The court need not address the various other grounds raised by defendant.

June 1, 2005
White Plains, New York

Judge of the Court of Claims