New York State Court of Claims

New York State Court of Claims

POWERS v. THE STATE OF NEW YORK, #2006-033-213, Claim No. 106851, Motion No. M-72184


Synopsis



Case Information

UID:
2006-033-213
Claimant(s):
MICHAEL POWERS
Claimant short name:
POWERS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106851
Motion number(s):
M-72184
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Richard Frank, P.C.By: Richard Frank, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Daniel Chu, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 24, 2006
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim for injuries to Michael Powers (hereinafter “claimant”) for the alleged medical malpractice of defendant’s employees at the State University of New York Hospital at Stony Brook, Stony Brook, New York. The date of occurrence of the alleged malpractice is the issue of the motion before the Court.


Defendant moves to dismiss the claim based upon this Court’s lack of jurisdiction because neither the notice of intention nor the claim were served in a timely manner[1].

The notice of intention and the claim indicate that the claim arose on December 20, 2001 (defendant’s Exhibits A and B). The notice of intention was served upon the Attorney General’s office on October 23, 2002. The claim was served upon the Attorney General’s office on November 21, 2002. Defendant argues the notice of intention and claim are untimely because they were served well beyond the ninety (90) days from the date of accrual (Court of Claims Act §10[3]).

In opposition, claimant argues that the notice of intention and the claim were both timely because claimant was undergoing a continuous course of treatment by the doctor that performed claimant’s surgery.

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, noted 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’.”

According to the claim and the notice of intention, claimant clearly states (in identical language) that the claim arose on December 20, 2001. Claimant makes no reference to a continuing course of treatment in either the notice of intention or the claim. The Court also notes that in each of the five bills of particulars served upon defendant, claimant never claims a continuing course of treatment.

Based on the foregoing, the Court has no alternative but to conclude that claimant served his notice of intention and filed his claim beyond the statutory dates set forth in Court of Claims Act §10(3). Claimant is unable to rely on the continuing course of treatment theory because he failed to plead it in the notice of intention or the claim.

The Court grants defendant’s motion to dismiss the claim. The Clerk of the Court is directed to close the file.



October 24, 2006
Hauppauge, New York

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




[1].The following papers have been read and considered on defendant’s motion: Notice of Motion dated August 22, 2006 and filed August 24, 2006; Affirmation in Support of Motion to Dismiss of Daniel Chu, Esq. with annexed Exhibits A-C dated August 22, 2006 and filed August 24, 2006; Affirmation of Richard Frank, Esq. with annexed Exhibits A-B dated August 30, 2006 and filed September 1, 2006; Reply Affirmation in Support of Motion to Dismiss of Daniel Chu, Esq. with annexed Exhibits A-F dated September 8, 2006 and filed September 12, 2006.