New York State Court of Claims

New York State Court of Claims

FUNG v. THE STATE OF NEW YORK, #2006-027-521, Claim No. 102762, Motion No. M-70980


Defendant’s motion to dismiss is denied.

Case Information

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):

Claimant’s attorney:
Barton, Barton and Plotkin, LLPBy: Ann B. Chase, Esq.
Defendant’s attorney:
Hon. Eliot Spitzer, Attorney GeneralBy: Bridget E. Farrell, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 8, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


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 motion.

A Claim[1] 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 Fung[2], 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 prejudice[3].

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 [1992]). “[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 [1999]). 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 [2003]). A claim which does not conform with the substantive pleading requirements of CCA § 11(b) is jurisdictionally defective (id. at 209).

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.

November 8, 2006
New York, New York

Judge of the Court of Claims

[1].The claim was improperly titled a Notice of Claim but in all other respects took the form of a Claim and was treated as such by both defendant and the Clerk of the Court of Claims.
[2].All references will refer to claimant, Damaris Fung, since the claim of Selwyn Fung is derivative in nature.
[3].Since the time requirements for filing and serving a claim contained within CCA §§ 10 are jurisdictional in nature, defendant may revisit this issue upon further proof.