New York State Court of Claims

New York State Court of Claims

MORTILLA v. THE STATE OF NEW YORK, #2005-033-107, Claim No. 108375, Motion No. M-69252


Case Information

HELAINE MORTILLA, as Administratrix of the Estate of ERIC MORTILLA, Deceased
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):

James J. Lack
Claimant’s attorney:
Seidner, Rosenfeld & Guttentag, LLPBy: Larry Rosenfeld, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Joseph Paterno, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 26, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arises from injuries to Eric Mortilla (hereinafter “decedent”) as the result of alleged medical malpractice by the State of New York (hereinafter “State”). The original medical malpractice claimed occurred during the period from April 17, 2001 through May 30, 2001. The alleged medical malpractice took place at University Hospital at Stony Brook (hereinafter “Stony Brook”).

The motion is brought on behalf of the decedent by the Administratrix, Helaine Mortilla (hereinafter “claimant”). Decedent was granted permission to file a late claim by this Court for a claim of medical malpractice on September 30, 2003 (M-66896 decision and order filed September 30, 2003). The original claim was filed on October 9, 2003. Thereafter, on January 31, 2004, decedent died. On February 27, 2004, the Administratrix was appointed by the Suffolk County Surrogate’s Court. At a conference on June 8, 2004, claimant was substituted for the decedent in the caption of the original claim without objection. On July 6, 2004, claimant filed an amended claim which added a cause of action for wrongful death.

Claimant has brought this motion for an order to compel pursuant to CPLR 3123 requesting that the Court deem the facts in the claim to be admitted, and CPLR 3126 requesting that the Court strike defendant’s answer[1]. On August 2, 2004, claimant served defendant with requests for various documents and a notice to take a deposition. As of the filing date of claimant’s motion (October 14, 2004), defendant had not answered the request for documents or produced a witness for a deposition. Claimant seeks the Court’s intervention.[2]

In opposition to claimant’s motion, defendant argues that the State has answered the request for discovery on November 15, 2004 (defendant’s Exhibit A).

Claimant argues that the answers are unresponsive to the original requests (claimant’s Exhibit D).

The Court denies claimant’s request to strike defendant’s answer and deem the facts as alleged in the claim admitted. First, CPLR 3123 applies to a notice to admit. Claimant did not serve a notice to admit, rather, claimant requested documents. It would be improper to apply CPLR 3123 in this instance. Second, this Court held a conference on September 8, 2004, and claimant did not raise the issue of outstanding discovery at that time. As to defendant’s response the Court overrules the objections stated by defendant. Defendant is ordered to provide claimant with a copy of the materials requested or a statement that they do not exist.

In addition, claimant seeks to dismiss affirmative defenses one through ten posed in the defendant’s answer. The defendant withdraws the 1st, 2nd, 3rd, 5th and 9th affirmative defenses. In her reply, claimant withdraws her objection to the 4th affirmative defense.

The defendant’s 8th and 10th affirmative defenses (claimant’s Exhibit B) are as follows:
The claim fails to comply with the Uniform Rules for the Court of Claims §206.6.


The amended claim is a nullity since it was not authorized by statute, order or stipulation as required by Rule 3025 of the Civil Practice Law and Rules.

Claimant’s objection to the eighth affirmative defense is that it does not state with specificity the non-compliance with Rule 206.6.

CPLR 3013 states:
Statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.

Rule 206.6 of the Uniform Rules for the Court of Claims lists seven areas which must be included in a claim, in addition to the requirements of Court of Claims Act §11. Defendant’s statement that the claim fails to comply with Rule 206.6 is not sufficiently particular as to apprise claimant of the elements of the defense (see Sinacore v State of New York, 176 Misc 2d 1). The Court strikes defendant’s eighth affirmative defense.

Claimant objects to the 10th affirmative defense arguing that claimant had the consent of an assistant attorney general to serve an amended claim and include a cause of action for wrongful death. However, at a conference on June 8, 2004 before this Court, this question of the defendant’s consent to an amended claim arose. The assistant attorney general present at the conference was not the assistant attorney general claimant says consented to the amendment. While the assistant attorney general consented to the substitution of the present claimant on the original claim, he specifically would not consent to allowing claimant to amend the claim to include a claim for wrongful death. As part of the Court’s order on June 8, 2004, claimant was ordered to make a motion to amend the claim by August 30, 2004, in the event that the Attorney General’s Office did not consent. No such motion was filed or requested until claimant’s reply to the instant motion filed December 1, 2004.

Claimant’s request to strike the 10th affirmative defense is denied. Claimant’s request in her reply papers to grant leave to amend the claim is denied. Defendant had no notice of claimant’s request in the reply papers and, therefore, had no opportunity to be heard. Claimant may make a motion for leave to amend the claim subject to any legal objections which defendant may now assert. Accordingly, claimant’s motion to strike defendant’s answer and deem the allegations of the claim admitted is denied. Claimant’s motion to strike defendant’s 8th affirmative defense in the answer to amended claim is granted, and claimant’s motion to strike defendant’s 10th affirmative defense in the answer to amended claim is denied.

July 26, 2005
Hauppauge, New York

Judge of the Court of Claims

[1].The following papers have been read and considered on claimant’s motion: Notice of Motion dated October 12, 2004 and filed October 14, 2004; Affirmation in Support of Larry Rosenfeld, Esq. with annexed Exhibits A-I dated October 12, 2004 and filed October 14, 2004; Affirmation in Opposition of Joseph Paterno, Esq. with annexed Exhibit A dated November 17, 2004 and filed November 19, 2004; Reply Affirmation of Larry Rosenfeld, Esq. dated November 29, 2004 and filed December 1, 2004 with annexed Affidavit of Dr. James Vogel sworn to June 29, 2004.
[2].The Court notes that claimant did not seek or receive the Court’s permission to make this discovery motion pursuant to the Uniform Rules for the Court of Claims §206.8(b). However, the Court will entertain the motion since the second part of claimant’s motion is legitimately before the Court.