New York State Court of Claims

New York State Court of Claims

STEWART v. THE STATE OF NEW YORK , #2006-033-208, Claim No. 111825, Motion Nos. M-71809, CM-71883


Synopsis



Case Information

UID:
2006-033-208
Claimant(s):
CHRISTOPHER STEWART
Claimant short name:
STEWART
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111825
Motion number(s):
M-71809
Cross-motion number(s):
CM-71883
Judge:
James J. Lack
Claimant’s attorney:
The Law Offices of Daniel P. Buttafuoco
& Associates, PLLC
By: James S. McCarthy, Esq. andEllen Buchholz, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Ross N. Herman, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 27, 2006
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim for injuries to Christopher Stewart (hereinafter “claimant”) for the alleged medical malpractice of defendant’s employees at the State University of New York at Stony Brook, Stony Brook, New York. The alleged malpractice occurred during a continuous course of treatment beginning September 17, 2005 and continuing through December 2005.


On January 11, 2006, claimant served and filed a claim. Defendant served its answer on February 14, 2006. On April 27, 2006, a preliminary conference was held between the parties and with the Court. At the conference, defendant’s jurisdictional defenses were discussed. One of the defenses discussed was claimant’s failure to include an ad damnum clause in the claim. Claimant indicated that it would file a motion for leave to serve a late claim.

Claimant has indeed made a motion for permission to file a late claim pursuant to Court of Claims Act §10(6)[1]. Defendant cross-moves to dismiss the underlying claim[2].

In opposition to the cross-motion, claimant argues that the failure to include an ad damnum clause is not jurisdictionally defective. Claimant cites to several cases of judges of this Court. Claimant ignores the other judges of this Court who have ruled that the failure to include the ad damnum clause is a jurisdictional defect, including this Court’s decision in Fardella v State of New York, Claim No. 108433, M-67729, UID No. 2004-033-054.

The requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Lurie v State of New York, 73 AD2d 1006, aff’d 52 NY2d 849). The purpose of these requirements is to give the State prompt notice of an occurrence and an opportunity to investigate the facts and prepare a defense. Lepkowski v State of New York, 1 NY3d 201, 207, notes that the Court of Claims Act "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.’" The Court of Appeals in Lepkowski contrasts CPLR 3017(c) which prohibits the pleading of a specific amount in personal injury and wrongful death actions. Lepkowski, which concerned unpaid overtime of state employees, dismissed the claims for, among other things, failing to plead the amount claimed as to each of the claimants.

Therefore, the Court finds that the failure by claimant to include the ad damnum clause is jurisdictionally defective. The Court grants defendant’s cross-motion to dismiss the claim and Claim No. 111825 is dismissed and the Clerk of the Court is directed to close the file.

In determining a motion seeking permission to file a late claim, the Court must consider the following six enumerated factors listed in Court of Claims Act §10(6): (1) whether the delay in filing was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the failure to file and serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; (5) whether the movant has another available remedy; and (6) whether the claim appears to be meritorious. The Court in the exercise of its discretion balances these factors, and, as a general rule, the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s and Firemen’s Retirement System, 55 NY2d 979).

The Court has reviewed the parties’ papers in support and in opposition to the motion.

Based on the foregoing, the Court concludes that the statutory factors favor movant’s application and, therefore, grants permission to file a late claim (Jomarron v State of New York, 23 AD3d 527). Movant is directed to serve and file the proposed claim within forty-five (45) days of the filing of this Decision and Order in accordance with §§10, 11 and 11-a of the Court of Claims Act.



September 27, 2006
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1].The following papers have been read and considered on movant’s motion: Notice of Motion dated May 30, 2006 and filed June 2, 2006; Affirmation of James S. McCarthy, Esq. with annexed Exhibits A-G dated May 30, 2006 and filed June 2, 2006.
[2].The following papers have been read and considered on defendant’s motion: Notice of Cross-Motion to Dismiss dated June 16, 2006 and filed June 19, 2006; Affirmation in Opposition to Motion for Leave to File a Late Claim and in Support of Cross-Motion to Dismiss for Lack of Jurisdiction of Ross N. Herman, Esq. dated June 16, 2006 and filed June 19, 2006; Affirmation in Reply and in Opposition to Cross Motion of Ellen Buchholz, Esq. dated July 10, 2006 and filed July 12, 2006; Reply Affirmation in Support of Cross-Motion to Dismiss for Lack of Jurisdiction of Ross N. Herman, Esq. with annexed Exhibit A dated July 14, 2006 and filed July 18, 2006.