Claimants move for an order permitting them to amend their claim to allege a
total sum sought, or in the alternative, permitting them to file a late claim
pursuant to §10.6 of the Court of Claims Act (the “Act”).
Defendant cross-moves to dismiss on the grounds that the court lacks
jurisdiction because the claim: (1) was untimely served and filed; (2) fails to
comply with §11.b of the Act in that it fails to allege with any
specificity the injuries sustained or the nature of the
; and (3) fails to state a total sum
claimed or a schedule of damages pursuant to §206.6(b) of the Uniform Rules
for the Court of Claims. In the underlying claim, it is alleged that on June
21, 2003, Karyn Acciarello was admitted to Downstate Medical Center for the
birth of Hannah Acciarello. Claimants allege that during delivery, the infant
claimant sustained personal injuries, and remained at the hospital until October
The Timeliness of the Claims of Hannah and Karyn Acciarello
Section 10.3 of the Act provides that a claim such as this must be served and
filed within 90 days of accrual, unless a notice of intention is served within
such time, in which case a claim must then be served and filed within two years
of accrual. However, §10.5 of the Act provides that if the claimant is
under a legal disability, the claim may be presented within two years after such
disability is removed. In this case, no notice of intention was served, and the
claim was served and filed on June 21, 2005. Hannah Acciarello, who was born on
June 21, 2003 is an infant who remains under legal disability pursuant to
§10.5 of the Act, and thus her claim was timely served and filed. However,
as to her mother Karyn, who suffers no legal disability, the June 21, 2005
filing and service occurred well beyond the 90-day period set forth in
§10.3, and the court thus lacks jurisdiction over her
Hannah Acciarello’s Claim
As set forth above, Hannah Acciarello’s claim, as opposed to that of her
mother, was timely served and filed. We must now turn to defendant’s
remaining arguments as to why it should be dismissed.
Defendant contends that for the purposes of §11.b of the Act, the injuries
sustained and the nature of the claim are not stated with any specificity, as
the allegations thereon are “vague, cursory and conclusory . .
In Heisler v State of New York, 78 AD2d 767, 433 NYS2d 646, 648 (4th
Dept 1980), it was stated that §11 of the Act:
provides in pertinent part, “The claim shall 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.” What is
required is not absolute exactness, but simply a statement made with sufficient
definiteness to enable the State to be able to investigate the claim promptly
and to ascertain its liability under the circumstances. The statement must be
specific enough so as not to mislead, deceive or prejudice the rights of the
Having reviewed the claim, I find that the allegations contained therein as to
the injuries sustained and the nature of the claim comply with §11.b of the
As to the failure to state a total sum claimed, in Lepkowski v State of New
York, 1 NY3d 201, 207, 770 NYS2d 696, 700 (2003), the Court of Appeals
stated that the statutory requirements conditioning suits against the State
“must be strictly construed,” and that, “section 11(b) places
five specific substantive conditions upon the State’s waiver of sovereign
immunity . . .” Mr. Lepkowski was the lead claimant for some 800 State
employees seeking unpaid overtime compensation, and the Court found that the
claims of these employees satisfied only one of the five requirements of
§11(b) five requirements, viz., the nature of the claim. The first
and fourth departments have distinguished Lepkowski where the only
missing §11(b) item was the total sum claimed, on the ground that there was
sufficient information supplied for the State to investigate and assess its
potential liability. Kolnacki v State of New York, 28 AD3d 1176, 2006 WL
1125241 (4th Dept 2006), lv granted, 2006 WL 1586041 (4th Dept 2006) ;
Morris v State of New York, 27 AD3d 282, 813 NYS2d 60 (1st Dept 2006).
In this case, the claim provides sufficient information for the State to so
investigate and assess. Finally, as to the failure to include a schedule of
damages pursuant to §206.6(b) of the Uniform Rules for the Court of Claims,
defendant has supplied no authority that such requirement is jurisdictional in
In view of the foregoing, I find that defendant’s motion to dismiss as to
Hannah Acciarello’s claim should be denied.
Karyn Acciarello’s Claim
Because, as set forth above, the Court lacks jurisdiction over Karyn
Acciarello’s claim, which was untimely served and filed, defendant’s
remaining arguments as to dismissal need not be reached, and her late claim
motion must be considered. In order to determine such motion, six factors
enumerated in the Act must be considered: whether (1) defendant had notice of
the essential facts constituting the claim; (2) defendant had an opportunity to
investigate the circumstances underlying the claim; (3) defendant was
substantially prejudiced; (4) claimant has any other available remedy; (5) the
delay was excusable and (6) the claim appears to be meritorious. The factors
are not necessarily exhaustive, nor is the presence or absence of any particular
With regard to notice, claimant points out that defendant is in possession of
the relevant medical records. But if such were sufficient to impute notice for
the purpose of the Act, this would mean that in any medical malpractice case,
such factor would automatically be satisfied. See O’Shea v State of
New York, Ct Cl filed November 5, 1999 (unreported, motion no. M-59853,
Marin, J.), affd 278 AD2d 237, 717 NYS2d 293 (2d Dept 2000). However,
some notice is implicated by the fact that there is a pending action in the
United States District Court, Eastern District of New York, which is being
defended in part by the Attorney General’s Office. In addition, the
aforesaid medical records do offer an opportunity to investigate. As for
prejudice, defendant does not raise an argument thereon.
As to an alternate remedy, as set forth above, claimant has sued in the United
States District Court for the Eastern District of New York, and thus, such
factor is not met. With regard to excuse, claimant has failed to provide any
explanation that satisfies the Act.
Finally, it must be determined whether the proposed claim appears meritorious.
Claimant has failed to supply an affidavit from a physician. There is precedent
that such an affidavit is required for a showing of merit. See, e.g.,
Schreck v State of New York, 81 AD2d 882, 439 NYS2d 162 (2d Dept 1981).
There is also authority to the contrary. See, e.g., Caracci v State
of New York, 178 AD2d 876, 577 NYS2d 925 (3d Dept 1991), and DePaolo v
State of New York, 99 AD2d 762, 472 NYS2d 10 (2d Dept 1984).
However, in Caracci
a finding of merit was made
based on a review of submitted medical records. In the instant case, claimant
has failed to submit any such medical records, and in order to demonstrate
merit, relies solely on her CPLR 3012-a certificate of merit. Such a
certificate alone is insufficient to demonstrate merit for the purposes of a
§10.6 late claim motion. See, e.g.
, Peralta v State of New
, Ct Cl, September 6, 2005, (unreported, motion no. M-70200, Schweitzer,
J., UID #2005-036-100).
I am thus constrained
to find that claimant has failed to demonstrate an appearance of merit. See
Zapata v State of New York
, Ct Cl, April 20, 2000 (unreported, motion no.
M-60903, Lane, J., UID #2000-012-506).
Having considered the six factors set forth in the Act, I find that Karyn
Acciarello’s late claim motion should be denied.