New York State Court of Claims

New York State Court of Claims

MONROE v. THE STATE OF NEW YORK, #2005-033-166, Claim No. 110395, Motion Nos. M-70356, CM-70777


Synopsis



Case Information

UID:
2005-033-166
Claimant(s):
HERMAN LOUIS MONROE, as Administrator of the Goods, Chattels and Credits which were of MARY MONROE, Deceased, and HERMAN LOUIS MONROE, individually
Claimant short name:
MONROE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110395
Motion number(s):
M-70356
Cross-motion number(s):
CM-70777
Judge:
James J. Lack
Claimant’s attorney:
Dinkes & Schwitzer, Esqs.By: Elena Carter, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Ross N. Herman, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 21, 2005
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim is brought by Herman Louis Monroe (hereinafter "claimant") as Administrator of the Goods, Chattels and Credits which were of Mary Monroe, Deceased (hereinafter “decedent”) and Herman Louis Monroe, individually, due to the alleged medical malpractice and negligence of the defendant, the State of New York (hereinafter “defendant”). The alleged malpractice and negligence occurred beginning on October 29, 2003 and ending on May 10, 2004. There is also a claim for wrongful death which occurred on May 16, 2004.
Claimant was appointed as Administrator on July 9, 2004. The Notice of Intention was served upon the defendant on February 3, 2004.[1]

Defendant seeks to dismiss the claim[2] pursuant to CPLR 3211 and Court of Claims Act §§10 and 11. Defendant argues that the claim fails to state, with specificity, any details which would allow the defendant an opportunity to investigate the claim. Further defendant, states:
. . . [t]he kitchen sink and boilerplate allegations that run on for pages in the Claim do not give the State of New York clear notice as to what duties, if any, were owed to the claimants, how those duties were allegedly breached, and who allegedly breached them (Defendant’s Affirmation ¶7).

In addition, defendant argues that the claim does not enumerate the damages and does not request an amount in compliance with Court of Claims Act §11(b).

Claimant opposes defendant’s motion by stating that the Notice of Intention is sufficient. Claimant relies on Schwartzberg v State of New York, 121 Misc 2d 1095 aff’d 98 AD2d 902, which states that a notice of intention need not specifically give each cause of action, but must alert defendant to the general nature of the claim.

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. There must be sufficient detail to enable the State to investigate (Schwartzberg v State of New York, 121 Misc 2d 1095, aff’d 98 AD2d 902). Pursuant to the Court of Claims Act, a claim must include the time when and place where the claim arose, the nature of the claim, items of damage or injuries sustained as well as the total sum claimed. If the original document does not include all that is essential to constitute a claim, the document is jurisdictionally defective (Grande v State of New York, 160 Misc 2d 383). The claim is subject to dismissal and “a lack of prejudice to the State is an immaterial factor” (Byrne v State of New York, 104 AD2d 782, 784, lv denied 64 NY2d 607).

It is well settled that absolute exactness is not required, only a statement with sufficient definiteness to give the defendant an opportunity to investigate the claim (Heisler v State of New York, 78 AD2d 767). “[T]he statement must be specific enough so as not to mislead, deceive or prejudice the rights of the State . . . Conclusory or general allegations of negligence that fail to adduce the manner in which the claimant was injured and how the State was negligent do not meet its requirements” (Heisler at 767 - 768).
Claimant’s arguments regarding the Notice of Intention are accurate. In particular, from the general statements claimant alleged in the Notice of Intention, defendant would be aware that claimant would be bringing a medical malpractice action in regard to something to do with decedent’s hospitalization. However, defendant is not challenging the Notice of Intention, rather it is the claim defendant states fails to meet the pleading requirements of Court of Claims Act §11(b).

The allegations as to the nature of the claim are repeated from the Notice of Intention. While the Notice of Intention alerts defendant to the possibility of a medical malpractice case, the claim does nothing to advance any theory as to a cause of action. The language of the claim boils down to anything that defendant or anyone associated with defendant did or failed to do constituted malpractice. The allegations are general in nature and take a scatter gun approach to pleading. This type of pleading fails to satisfy the requirements of §11(b) of the Court of Claims Act.

Defendant also notes that the claim fails to include an ad damnum clause and is therefore jurisdictionally defective.

Claimant cross-moves to amend the claim to include an ad damnum clause[3]. Claimant argues that the failure to include the clause is not a jurisdictional defect. In support, claimant relies upon Legall v State of New York, (Ct Cl, Scuccimarra, J., Claim No. 109419, Motion Nos. M-69845, CM-69936 [UID No. 2005-030-924]) and Harvey Chalmers & Son, Inc. v State of New York, 271 App Div 699.

In Chalmers, claimant filed a document which was entitled “Notice of Intention” rather than claim. After two years, defendant asserted the claim was barred because claimant had not filed a more formal claim. The notice of intention filed by claimant was sufficient to plead a claim against defendant but it did not contain a sum claimed. The pleading requirements of §11 of the Court of Claims Act do not require the sum claimed to be pled in the notice of intention. Therefore, upon claimant’s motion to treat the notice of intention as a claim, the Court was satisfied the notice of intention met the pleading requirements of the Court of Claims Act.

Chalmers
is not applicable to the instant matter. In the present case, claimant seved a Notice of Intention and filed and served a formal claim. Claimant is not seeking to treat the Notice of Intention as a claim (Court of Claims Act §10[8]), nor is he moving for permission to file a late claim (Court of Claims Act §10[6]). Instead, claimant is seeking to amend the claim to include the ad damnum clause.

To the extent that Legall finds that the failure to include an ad damnum clause is not a jurisdictional defect, this Court respectfully disagrees.

As previously stated, 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). Lepkowski v State of New York, 1 NY3d 201, 207, noted that the Court of Claims Act “places five specific substantive conditions upon the State's waiver of sovereign immunity by requiring the claim to specify (1) ‘the nature of [the claim]’; (2) ‘the time when’ it arose; (3) the ‘place where’ it arose; (4) ‘the items of damage or injuries claimed to have been sustained’; and (5) ‘the total sum claimed.’" The Court of Appeals in Lepkowski contrasts CPLR 3017(c) which prohibits the pleading of a specific amount in personal injury and wrongful death actions. Lepkowski, which concerned unpaid overtime of state employees, dismissed the claims for, among other things, failing to plead the amount claimed as to each of the claimants.

Therefore, the Court finds that the failure by claimant to include the ad damnum clause is jurisdictionally defective.

Based on the foregoing, the Court concludes that the claim fails to satisfy the pleading requirements of Court of Claims Act §11. The defendant’s motion is granted and the claim is dismissed. The Clerk of the Court is directed to close the file.

Claimant’s cross-motion to amend the claim is denied. The Court notes that claimant did serve a Notice of Intention on February 3, 2004 and/or a motion to file a late claim (Court of Claims Act §10[6]) appears to still be timely.


December 21, 2005
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1].In examining the caption on the Notice of Intention (claimant’s Exhibit B) and the caption of the claim (claimant’s Exhibit A), it appears that decedent was alive when the Notice of Intention was served and dead when the claim was served and filed. Defendant has withdrawn that part of its motion to dismiss which concerns the timeliness of the wrongful death and conscious pain and suffering causes of action.
[2].The following papers have been read and considered on defendant’s motion: Notice of Motion dated June 23, 2005 and filed June 24, 2005; Affirmation in Support of Motion to Dismiss with annexed Exhibits A-G dated June 23, 2005.
[3].The following papers have been read and considered on claimant’s cross-motion: Notice of Cross Motion dated October 5, 2005 and filed October 7, 2005; Affirmation in Opposition and Notice of Cross-Motion of Elena Carter, Esq. with annexed Exhibits A-D dated October 5, 2005 and filed October 7, 2005; Reply Affirmation in Support of Motion to Dismiss and in Opposition to Cross-Motion of Ross N. Herman, Esq. with annexed Exhibits 1-2 dated October 18, 2005 and filed October 20, 2005; Reply Affirmation in Support of Cross-Motion of Elena Carter, Esq. with annexed Exhibit E dated October 25, 2005 and filed October 25,2005.