The Court read and considered the following papers on this motion:
Defendant’s Notice of Motion, Defendant’s Affirmation in Support
with annexed Exhibits A-D and Claimants’ Affirmation in Opposition with
annexed Exhibits A-F. Defendant, the State of New York, has brought this
motion, pursuant to Civil Practice Law and Rules (CPLR) R 3211 and R 3212 as
well as Court of Claims Act (CCA) §§ 10 and 11 seeking an Order
dismissing the claim. Claimants, Damaris Fung and Selwyn Fung, oppose this
was served in this matter upon
defendant, the State of New York, and filed with the Clerk of the Court of
Claims on July 17, 2000. The Claim alleges numerous instances of medical
malpractice sustained by claimant, Damaris
, due to the actions of employees of the
State University of New York Downstate Medical Center (SUNY).
In its motion, defendant contends that the last date of contact between
claimant and SUNY was April 13, 2000. Consequently, defendant argues that
claimant failed to serve and file the claim within the time constraints set
forth in CCA § 10(3). In response, claimant states that the last date of
defendant’s care and treatment of claimant was April 18, 2000. Claimant
submitted a copy of an MRI report which seems to indicate that the report was
read and interpreted by an employee of defendant on April 18, 2000. In light of
this later date, it appears, that the claim was served and filed in accordance
with the time requirements contained in CCA § 10(3). Defendant did not
address the April 18, 2000 date in any responsive papers. Thus, that portion of
defendant’s motion must be denied without
Defendant argues that the claim is jurisdictionally defective for failing to
comply with the requirements of CCA § 11(b).
The Court of Appeals has long held that “suits against the State are
allowed only by the State’s waiver of sovereign immunity and in derogation
of the common law, [and that because of this] statutory requirements
conditioning suit must be strictly construed”(Dreger v New York State
Thruway Authority, 81 NY2d 721, 724 ). “[A]ccordingly, claimants
who had not met the literal requirements of Court of Claims Act § 11 had
not properly commenced their actions” (Lichtenstein v State of New
York, 93 NY2d 911, 913 ). CCA § 11(b) “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’”(Lepkowski v State of New York, 1 NY3d 201, 207
). A claim which does not conform with the substantive pleading
requirements of CCA § 11(b) is jurisdictionally defective (id. at
After reviewing the claim the Court finds that it satisfies the requirements
of CCA §11(b). An independent reading of the Claim reveals, inter
alia, that the claim is for medical malpractice which commenced in December
1996 and continued through April 2000 while claimant was treated at SUNY.
Briefly, claimant stated that defendant failed to properly diagnose, as well as
timely and completely remove a left epidermoid tumor. As a result claimant
contends that she was caused to sustain various injuries including a vascular
injury and permanent neuro-vascular impairment of her right lower extremity.
Claimant then alleges damages of five million dollars for each of her first two
causes of action and two million dollars for the derivative cause of action.
Clearly, claimant has supplied ample information in her claim to comply with
each of the five prongs contained in CCA §11(b) (see Rodriguez v State
of New York, 8 AD3d 647 [2d Dept 2004]).
A claim must also provide sufficient detail to allow defendant an opportunity
to perform a meaningful investigation into the facts surrounding the subject
incident (Heisler v State of New York, 78 AD2d 767 [4th Dept 1980]). The
Court also finds that the claim is adequate in this regard. Finally, claimant
alleges damages in specified amounts.
Defendant spends a substantial portion of its motion addressing a purported
allegation of negligent hiring. A careful review of the claim reveals that the
claim does not specifically make reference to a negligent hiring cause of
action. However, defendant's negligence in hiring, supervising and training its
employees can be reasonably inferred from the allegations contained within the
claim (Morris v State of New York, 27 AD3d 282 [1st Dept 2006]). Thus,
that portion of defendant’s motion seeking to dismiss a negligent hiring
claim is also denied.
Therefore, for the foregoing reasons, defendant’s motion to dismiss the
claim is denied to the extent stated herein.