New York State Court of Claims

New York State Court of Claims

ABREU v. THE STATE OF NEW YORK, #2005-033-099, Claim No. 109272, Motion Nos. M-68625, CM-69266


Synopsis



Case Information

UID:
2005-033-099
Claimant(s):
HERBERT ABREU, SR.
Claimant short name:
ABREU
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK The Court sua sponte amends the caption to read The State of New York as the Defendant. The only Defendant the Court of Claims has jurisdiction over is the State of New York. Individual defendants must be sued in Supreme Court.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109272
Motion number(s):
M-68625
Cross-motion number(s):
CM-69266
Judge:
James J. Lack
Claimant's attorney:
Friedman, Khafif & Associates, LLP
By: Paul D. Creinis, Esq., Of Counsel andAndrew Friedman, Esq.
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Ellen Matowik, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 18, 2005
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim for damages to the claimant as the result of the alleged medical malpractice by defendant from February 6, 2003 through April 14, 2003. The alleged acts of malpractice are dental malpractice and occurred at the School of Dental Medicine at the Health Science Center at Stony Brook, New York.

Defendant moves this Court to dismiss the claim on several grounds[1]. First, defendant argues the claim was not timely served and filed pursuant to Court of Claims Act §§ 10 and 11. Defendant also argues that the claim should be dismissed for its failure to particularize the circumstances of the claim in accord with Court of Claims Act §11. Defendant's last ground for dismissal is claimant's failure to include a certificate of merit pursuant to CPLR 3012-a.

Claimant cross-moves the Court for an order to compel defendant to provide claimant with medical records.[2]

According to the defendant, claimant served the claim by personal service on defendant on April 22, 2004. The claim was unverified and rejected by defendant pursuant to CPLR 3022. Thereafter, claimant served the claim, by personal service, upon the Attorney General's Office on April 29, 2004. The claim was also filed with the Clerk of the Court on April 29, 2004. Claimant did not serve a notice of intention upon defendant.

In opposition to defendant's motion, claimant argues that he was unable to provide specific details of the action because the medical records are within the defendant's possession and he was unable to obtain them. Further, claimant argues that because defendant was in possession of the records, it was aware of the circumstances of the claim and is not prejudiced by the failure to serve a claim or notice of intention within 90 days.

The requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Lurie v State of New York, 73 AD2d 1006, aff'd 52 NY2d 849). The purpose of these requirements is to give the State prompt notice of an occurrence and an opportunity to investigate the facts and prepare a defense. It is well settled that if the filing and service is not timely, then the claim is subject to dismissal (Greenspan Bros. v State of New York, 122 AD2d 249). Court of Claims Act §10(3) states that the claim should be served and filed within 90 days of the date of accrual or the notice of intention should be served within 90 days of the date of accrual. If a notice of intention is served upon the Attorney General's Office then, claimant must serve and file his claim within 2 years of the date the claim accrued.

Assuming arguendo, that claimant underwent a continuous course of treatment until April 2003, then claimant should have filed his claim or notice of intention by July 2003. Claimant did not serve and file the claim until 12 months after the date of accrual. Claimant concedes that he did not timely serve the claim or a notice of intention upon the defendant. Rather than cross-move for an order to allow a late claim pursuant to Court of Claims Act §10(6), claimant asks the Court to ignore the time limits set by the Court of Claims Act. The Court is unable to ignore the time limits. Claimant could have served a notice of intention upon defendant and he would have preserved his time to file while trying to obtain his records.

Therefore, the Court grants defendant's request to dismiss the claim for claimant's failure to timely serve and file the claim. Defendant's remaining arguments and claimant's cross-motion are denied as moot. The Clerk of the Court is directed to close the file.


March 18, 2005
Hauppauge, New York
HON. JAMES J. LACK
Judge of the Court of Claims




[1]The following papers have been read and considered on defendant's motion and claimant's cross-motion: Notice of Motion to Dismiss dated June 9, 2004 and filed June 14, 2004; Affirmation in Support of Ellen Matowik with annexed Exhibits A-C dated June 9, 2004 and filed June 14, 2004; Affirmation in Opposition of Paul D. Creinis, Esq. with annexed Exhibits A-C dated August 17, 2004 and filed August 27, 2004; Notice of Cross-Motion dated October 22, 2004 and filed October 22, 2004; Affirmation in Support of Cross-Motion of Andrew Friedman, Esq. dated October 21, 2004 and filed October 22, 2004; Affirmation in Reply of Ellen Matowik Esq. with annexed Exhibits A-B dated October 25, 2004 and filed October 27, 2004; Affirmation in Opposition of Ellen Matowik, Esq. dated November 3, 2004 and filed November 5, 2004; Affirmation Opposing Defendant's Reply Papers of Andrew Friedman, Esq. dated November 11, 2004 and filed November 12, 2004.
[2]Although claimant did not receive the Court's permission to file this motion, the Court allowed it to proceed.