New York State Court of Claims

New York State Court of Claims

ACCIARELLO v. THE STATE OF NEW YORK, #2006-016-016, Claim No. 111038, Motion Nos. M-70958, CM-71059


Motion to amend claim to allege a total sum claimed was granted and cross-motion to dismiss was denied. Related late claim motion was denied

Case Information

KARYN ACCIARELLO, individually and as mother and natural guardian of HANNAH ACCIARELLO, an infant under the age of fourteen years
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):
Alan C. Marin
Claimant’s attorney:
Peters, Berger, Koshel & Goldberg, P.C.
By: Richard L. Goldberg, Esq.
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: Ross N. Herman, Esq., AAG
Third-party defendant’s attorney:

Signature date:
June 28, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


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 claim[1]; 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 22, 2003.

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 claim.[2]

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 State.

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 Act.

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 nature.

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 factor controlling.[3]

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 and DePaolo, 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 York, Ct Cl, September 6, 2005, (unreported, motion no. M-70200, Schweitzer, J., UID #2005-036-100).[4] 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.

* * *
Accordingly, having reviewed the parties’ submissions[5], IT IS ORDERED that motion no. M-70958 be granted only to the extent that within sixty (60) days of the filing of this Decision and Order, Hannah Acciarello shall file and serve an amended claim setting forth a total sum claimed. IT IS FURTHER ORDERED that cross-motion no. CM-71059 be granted only to the extent that the claim of Karyn Acciarello is hereby dismissed.

June 28, 2006
New York, New York

Judge of the Court of Claims

  1. [1]Defendant also alleges that the claim’s allegations of negligent hiring and supervision are inadequate.
  2. [2]See, e.g., Byrne v State of New York, 104 AD2d 782, 783, 480 NYS2d 225, 227 (2d Dept 1984), lv denied, 64 NY2d 607, 488 NYS2d 1023 (1985); Mallory v State of New York, 196 AD2d 925, 601 NYS2d 972 (3d Dept 1993).
  1. [3]See Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement Sys. Policemen’s and Firemen’s Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  2. [4]This and other decisions of the Court of Claims may be found on the court’s website:
  3. [5]The Court reviewed: claimants’ notice of motion with affidavit in support and exhibits A through C; defendant’s notice of cross-motion with affirmation in opposition to motion and in support of cross-motion with exhibits A through G; and claimants’ January 23, 2006 letter.