New York State Court of Claims

New York State Court of Claims

OLIVER v. THE STATE OF NEW YORK , #2006-027-524, Claim No. 106469, Motion No. M-70587


Synopsis


Defendant’s motion to dismiss claim based on section 11(b) was granted.
Appellate Result:
REVERSED 2d Dept 5/8/07 2007 NY Slip Op 04090

Case Information

UID:
2006-027-524
Claimant(s):
In the Matter of the Claim of YVONNE OLIVER and EDDISON OLIVER
1 1.The caption has been amended, sua sponte, to reflect the State of New York as the only properly named defendant.
Claimant short name:
OLIVER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended, sua sponte, to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106469
Motion number(s):
M-70587
Cross-motion number(s):

Judge:
ALTON R. WALDON, JR.
Claimant’s attorney:
Peter E. Tangredi & AssociatesBy: Stephen D. Chakwin, Jr., Esq.
Defendant’s attorney:
Hon. Eliot Spitzer, Attorney GeneralBy: Albert E. Masry, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 28, 2006
City:
New York
Comments:

Official citation:

Appellate results:
REVERSED 2d Dept 5/8/07 2007 NY Slip Op 04090
See also (multicaptioned case)


Decision

The following papers were read and considered by the Court on this motion: Defendant’s Notice of Motion, Defendant’s Affirmation with annexed Exhibits A-D, Claimants’ Affirmation in Opposition with annexed Exhibits 1-5 and Defendant’s Reply Affirmation. Defendant, the State of New York, has brought this motion pursuant to Civil Practice Law and Rules (CPLR) R 3211 as well as Court of Claims Act (CCA) § 11 seeking an order dismissing the claim. Claimants, Yvonne Oliver and Eddison Oliver, have opposed this motion.

A claim was filed in this matter on August 7, 2002 wherein claimants allege claims for negligence and medical malpractice. Defendant argues that the claim is jurisdictionally defective for failing to comply with the requirements of CCA § 11(b) by insufficiently describing the nature of the incident and defendant’s alleged negligent conduct in relation to the incident.

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).

In describing the nature of the action the claim must provide sufficient detail to allow defendant an opportunity to perform a meaningful investigation into the facts surrounding the subject incident (Rodriguez v State of New York, 8 AD3d 647 [2d Dept 2004]; Heisler v State of New York, 78 AD2d 767 [4th Dept 1980]). A claim for medical malpractice must, at the very least, provide an indication of the manner in which the claimant was injured and how the defendant was negligent (Rodriguez v State of New York, 8 AD3d 647 [2d Dept 2004]). It is a minimal standard but one that has not been met in this case.

The claim describes the nature of the action as follows:

“[t]he nature of the claim is for medical malpractice and the negligence of THE STATE OF NEW YORK S.U.N.Y. HEALTH SCIENCE CENTER AT BROOKLYN a/k/a DOWNSTATE MEDICAL CENTER and the BROWNSVILLE MATERNAL AND INFANT CARE. This is a [sic] action for serious, severe and permanent personal injuries; conscious pain and suffering; and psychological injuries and emotional harm incurred as a result of the negligence, medical malpractice, carelessness and recklessness of THE STATE OF NEW YORK S.U.N.Y. HEALTH SCIENCE CENTER AT BROOKLYN a/k/a DOWNSTATE MEDICAL CENTER and its employees, agents, servants and/or employees in failing to employ and exercise that degree of reasonable and professional skill, care and diligence generally exercised by hospitals, emergency room staff physicians, surgeons, anesthesiologists, technicians, nurses and other practicing in and about the State of New York; in failing to have an adequate staff of physicians, surgeons, anesthesiologists, technician, nurses and others at the aforesaid hospital facility; in failing to properly treat the claimants; in failing to use due, reasonable and proper skills and care in the treatment of the claimants; in failing to follow standard and accepted medical and nursing practices and procedures; in failing to render or provide proper and adequate medical and nursing care and treatment; in rendering or providing improper and inadequate medical and nursing care and treatment in a careless and negligent manner and contrary to standard and accepted medical and nursing practices and procedures; in failing to render or provide proper and adequate care and treatment during surgery and thereafter in accordance with standard and accepted medical and nursing practices and procedures; in failing to properly monitor claimant’s physical signs and conditions during surgery; in failing to render or provide proper and adequate care and treatment in accordance with standard and accepted medical and nursing practices and procedures; in failing to render timely and adequate emergency care and treatment; in failing to properly observe, monitor and attend the patient in accordance with standard and accepted medical, obstetrical and nursing practices and procedures; and in generally being negligent, careless and omiss [sic]. Claimants rely on the theory of res ipso [sic] loquitur.”


The claim also states that the action arose on or about June 7, 2002 and goes on to recite that claimants were caused to sustain:

“permanent and severe debilitating personal injuries, conscious pain and suffering, psychological injuries, permanent damage to nerves, muscles, tendons and other organs, severe and permanent impairment, extreme physical pain, emotional and mental anguish, extreme mental stress; trauma sustained; loss of earnings; medical and other related expenses incurred.”


Under the items of damages claimant, Yvonne Oliver alleges she has been damaged in the amount of twenty million dollars while claimant, Eddison Oliver alleges damages of five million dollars.

A claim must, on its own merit, satisfy the requirements of CCA § 11(b). It has long been held that “[t]he [defendant] ‘is not required to go beyond a claim or notice of intention in order to investigate an occurrence or ascertain information which should be provided pursuant to Court of Claims Act § 11’” (Cobin v State of New York, 234 AD2d 498, 499 [2d Dept 1996], quoting Grande v State of New York, 160 Misc 2d 383, 386 [Ct Cl 1994]). “The Court of Claims Act does not require the State to ferret out or assemble information that section 11(b) obligates the claimant to allege” (Lepkowski v State of New York, 1 NY3d 201, 208 [2003]).

Claimants argue that the claim informs defendant of the name and address of the claimant and her husband, the name of the institution at which she was a patient, the date of admission in issue and the nature of the claim which they describe as “medical malpractice with a res ipsa loquitur theory.” However, an independent reading of the claim finds that it is deficient in a number of respects. Initially, the Court notes that the claim does not differentiate between the claims of Yvonne Oliver and Eddison Oliver with the exception of the amounts of damages sought. It is only through further pleadings that claimants alleged that claimant, Yvonne Oliver was the person who was actually treated at defendant’s facility and that the claim of Eddison Oliver was derivative in nature (see Cl Exh 1). Additionally, claimants concede that Yvonne Oliver was not treated at defendant’s facility on June 7, 2002 but rather she was admitted to defendant’s hospital on June 9, 2002. Apparently, she remained a patient at defendant’s hospital from June 9, 2002 through July 25, 2002 (see Cl Exh 1). The claim does not make any reference to the fact that claimant, Yvonne Oliver, underwent mitral valve replacement surgery on June 10, 2002 during which she alleges that a surgeon improperly perforated a vein in her chest which led to a stroke (see Cl Exh 1). The boilerplate language used to describe the nature of the claim also contains a reference to obstetrical treatment which does not appear to relate to the facts of the subject incident. Finally, there is no support in the claim for claimants’ theory of res ipsa loquitur given the paucity of facts contained therein.

Consequently, the court finds that the claim fails to conform to the jurisdictional requirements of CCA § 11(b). Therefore, for the foregoing reasons, defendant’s motion is granted and the claim is hereby dismissed.

June 28, 2006
New York, New York

HON. ALTON R. WALDON, JR.
Judge of the Court of Claims