New York State Court of Claims

New York State Court of Claims

RODRIGUEZ v. THE STATE OF NEW YORK, #2007-015-203, Claim No. 113166, Motion Nos. M-73019, CM-73119


Synopsis


Notice of intention served before the appointment of an estate representative was valid. Defendant waived defense of untimely service by failing to plead it with particularity. CPLR 210 (a) is a tolling provision and does not operate to reduce statutory periods. Motion to amend claim to add wrongful death cause of action was denied with leave to renew upon proper showing.

Case Information

UID:
2007-015-203
Claimant(s):
MARLEEN ISOLINA RODRIGUEZ, Individually and as Administratrix of the Estate of LUIS MEJIAS, deceased
Claimant short name:
RODRIGUEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113166
Motion number(s):
M-73019
Cross-motion number(s):
CM-73119
Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Lee David Klein, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Belinda A. Wagner, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 26, 2007
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant moves for an order pursuant to CPLR 2001, 2004 and Court of Claims Act § 10 (6) deeming the notices of intention to file a claim, which were served prior to the date that Marleen Isolina Rodriguez was appointed the administratrix of the estate of the decedent Luis Mejias, valid nunc pro tunc or, in the alternative, for permission to late file the notices of intention or for leave to commence a new action pursuant to CPLR 205 (a). Claimant also moves for an order dismissing the defendant's seventh, eighth, ninth and tenth affirmative defenses pursuant to CPLR 3211 (b) and granting leave to serve and file a second amended claim which includes a cause of action for wrongful death pursuant to CPLR 3025 (b). Defendant opposes the motion and cross-moves for an order dismissing the claim as untimely. On March 28, 2005 a notice of intention to file a claim on behalf of Marleen Isolina Rodriguez individually and as administratrix of the estate of Luis Mejias was served personally on the defendant. The notice of intention alleges that the decedent, an inmate at Altona Correctional Facility, was injured on January 5, 2005 as the result of the defendant's negligence in failing to provide him with a bottom bunk bed as previously ordered. It is alleged that on January 4, 2005 the decedent was given a bottom bunk permit by the medical department with directions that he should be moved immediately from his top bunk assignment due to a seizure disorder, that he was not moved immediately and that on January 5, 2005 he suffered a grand mal seizure and fell from the upper bunk sustaining personal injuries (see claimant's Exhibit A).

On May 26, 2005 a second notice of intention to file a claim on behalf of Marleen Isolina Rodriguez individually and as administratrix of the estate of Luis Mejias was personally served on the defendant. This notice of intention alleges that between January 5, 2005 and March 5, 2005 at Altona Correctional Facility, and thereafter at Upstate Correctional Facility where Mr. Mejias was subsequently transferred, the defendant was negligent in failing to give the decedent a bottom bunk assignment and in failing to provide proper medical care and supervision. It is alleged that the decedent was placed in solitary confinement while at Upstate Correctional Facility where he suffered another grand mal seizure resulting in a loss of consciousness and cessation of breathing and heart beat for which he was hospitalized on March 3, 2005. Luis Mejias died on March 5, 2005 at Albany Medical Center. The second notice of intention states the following as the items of damages sustained:
a. Decedent sustained pain, anguish, anxiety, and the fear associated with understanding that his medical circumstances were being ignored and that his health circumstances were becoming dire, and that he was in danger.

b. As a result, he sustained an untimely death.

The claimant is the sister of the decedent and avers that she had great difficulty gathering the information necessary to complete the petition seeking her appointment as administratrix of her brother's estate because he fathered five children by four different women whose whereabouts were difficult to ascertain. In addition she states that due to her own circumstances she was forced to relocate to Virginia which complicated matters further. The petition for letters of administration is dated December 19, 2006 and was communicated to the Surrogate's Court by cover letter dated January 3, 2007. Letters of temporary administration were issued to the claimant on January 5, 2007 (see claimant's Exhibit D).

On January 4, 2007 a claim was verified by claimant's counsel and sent to the Attorney General by ordinary mail. The claim was filed in the Court of Claims on January 5, 2007 (claimant's Exhibit E). This claim states that "on or about the 5th day of January 2007, Letters of Administration with limited authority pursuant to Section 702 of the Surrogates [sic] Court Procedure Act . . . will be granted to said claimant, Marlene [sic] Isolina Rodriguez, by the Ulster County Surrogate" (see claimant's Exhibit E [emphasis added]). The claim sets forth two causes of action, the first for injuries sustained by the decedent on January 5, 2005 when he fell from the top bunk at Altona Correctional Facility and the second for improper medical care and supervision of the decedent which allegedly occurred between January 5, 2005 and March 5, 2005. The second cause of action alleged that the defendant was negligent in failing to take into account the decedent's seizure disorder, failing to give the claimant a proper bunk assignment, failing to provide proper medical care and supervision, placing the decedent in solitary confinement while at Upstate Correctional Facility in disregard of his ongoing medical issues and failing to provide prompt and proper medical treatment to the decedent when he suffered a grand mal seizure while in solitary confinement. With respect to the items of damages sustained, this claim alleges the following:
13. The decedent suffered pain, anguish, anxiety, and fear associated with understanding that his medical circumstances were being ignored and that his health circumstances were becoming dire and that he was in danger.

14. As a result of the foregoing, the decedent sustained an untimely death.

* * *

18. The particulars of claimant's damages are as follows:

Claimant, and the distributees of the decedent's Estate, have sustained damages arising from the extraordinary physical and emotional pain and suffering, anguish and anxiety stemming from the injuries sustained by the decedent, the failure of the defendant to employ proper procedures to ensure his safety and proper medical treatment and stemming from the pain, anguish, anxiety, and fear, and the conscious pain and suffering associated with severe medial [sic] circumstances of a life-threatening nature, and as a result of the decedent's untimely death. Such damages total TWO MILLION DOLLARS ($2,000,000.00).

Schedule A attached to the claim sets forth a breakdown of the damages: $1,000,000.00 for "physical pain and suffering" and $1,000,000.00 for "emotional pain and suffering leading to death". The answer to the claim served on January 31, 2007 asserted improper service of the claim as its sixth affirmative defense (see claimant's Exhibit G). On February 5, 2007 the claim was re-served on the Attorney General by certified mail, return receipt requested (see claimant's Exhibit F). By letter dated February 12, 2007 the defendant withdrew its sixth affirmative defense pertaining to the alleged improper service of the claim (see claimant's Exhibit P).

An amended claim was filed on February 14, 2007 and served upon the defendant by certified mail, return receipt requested on February 13, 2007. The amended claim replaced the allegation in the original claim that letters of administration "will be" granted on January 5, 2007 with the allegation that letters of administration were granted on January 5, 2007. The claim in all other respects was unchanged. Defendant served its answer to this claim during the pendency of the instant motion. The defenses previously designated as defendant's seventh through tenth affirmative defenses were reworded and renumbered sixth through ninth. The sixth, seventh and ninth affirmative defenses allege that the causes of action are time-barred because the notices of intention served prior to the appointment of the claimant as administratrix of the estate are a nullity. In addition, the defendant alleges in its eighth affirmative defense that to the extent the claim seeks damages beyond those sustained by the decedent, such claims exceed the scope of the notices of intention and are therefore time-barred.

In view of the fact that the defendant's answer was served after the instant motion was made, the Court will treat the claimant's motion to dismiss the defendant's seventh through tenth affirmative defenses as a motion to dismiss the defendant's sixth through ninth affirmative defenses asserted in its answer to the amended claim.

Timeliness Of The Claim

A negligence claim for personal injuries is required to be filed and served within ninety days after the accrual of the claim unless, within such time, the claimant serves a notice of intention to file a claim in which event the claim is required to be filed and served within two years after the accrual of the claim (Court of Claims Act § 10 [3]). A wrongful death claim is required to be filed and served within ninety days after the appointment of the estate representative unless, within such time, the claimant serves a notice of intention to file a claim in which event the claim is required to be filed and served within two years after the death of the decedent (Court of Claims Act § 10 [2]). The first notice of intention to file a claim relates to the claim for negligence which accrued on January 5, 2005 when the decedent fell from the top bunk in his cell. It was served on March 28, 2005, well within the ninety-day time frame, and was therefore timely. The second notice of intention relates to the claim for negligence and medical malpractice which allegedly occurred "on and between January 5, 2005 and March 5, 2005", the date of decedent's death. To the extent an accrual date is discernable from the allegations set forth therein, it appears the claim accrued on March 3, 2005, the date the claimant stopped breathing and was admitted to the hospital. This second notice of intention was served on May 26, 2005, within ninety days after the date of the alleged accrual and therefore appears timely.

The fact that the notices of intention were served before the appointment of the claimant as the estate representative does not render the notices a nullity as alleged in the defendant's sixth, seventh, and ninth affirmative defenses in its answer to the amended claim. As stated by the Appellate Division, Third Department, in Matter of Johnson v State of New York (49 AD2d 136 [1975]):
Some claimants, out of a desire to avoid delay in seeking to vindicate legal rights, do not await a formal appointment as legal representative but act in anticipation of it. In so doing, the purpose of the statute is fully served. We can discern no legislative intent to hamper those who act with dispatch such as will be better calculated to bring about a more rapid determination on the merits.

* * *

The statute as written does not require that one have formal status as legal representative before a notice of intention may be filed, so long as the notice is timely filed and the claim itself is ultimately timely filed by a claimant with the status of authorized legal representative (id. at 138-139).

Subsequent to Johnson the Court of Appeals held in Lichtenstein v State of New York (93 NY2d 911, 913 [1999]) that "the proper claimant can be only a duly appointed personal representative in receipt of letters of administration" (citing EPTL § 11-3.2 and EPTL § 1-2.13). However, a notice of intention is not a pleading and in recognition of this critical distinction it has been held both before and after Lichtenstein was decided that such a notice may be served by an interested person (see Tooks v State of New York , ___AD3d ___, 2007 WL 1500047, 2007 NY Slip Op 04392 [3d Dept, May 24, 2007]; DeFilippis v State of New York, 157 AD2d 826, 828 [1990]; Atlantic Mut. Ins. Co. v State of New York, 50 AD2d 356 [1976], affd 41 NY2d 884 [1977]; Dedivanaj v State of New York, 13 Misc 3d 1246[A][2006]; Horeth v State of New York, 15 Misc 3d 1129[A] [2007]; Loperfido v State of New York, Ct Cl, April 13, 2006 [Claim No. 110163, Motion No. M-70229, UID # 2006-028-546] Sise, J., unreported). That a prospective claimant may preserve her rights before she becomes endowed with the official status of claimant "complies with the legislative purpose to give the State prompt notice that a claim will be asserted against it so that the State will not be prejudiced and taken by surprise by a stale claim" (Atlantic Mut. Ins. Co. v State of New York, 50 AD2d 356 at 358). Inasmuch as the claimant's notices of intention are not nullities as alleged in the defendant's sixth, seventh and ninth affirmative defenses in its answer to the amended claim, those defenses are dismissed.

The defendant also makes the argument that the claim filed on January 5, 2007 is a nullity because it was verified on January 4, 2007, as of which date the administratrix had not yet been appointed. In this regard the claim (dated January 4, 2007) alleges that the claimant "will be" appointed the administratrix of the estate of the decedent on January 5, 2007. In fact, the claimant was appointed administratrix of the decedent's estate on January 5, 2007. Although the claim was filed on January 5, 2007, it was sent to the Attorney General by ordinary mail service on January 4, 2007, prior to the claimant's appointment as the estate representative. Notwithstanding the defendant's withdrawal of its sixth affirmative defense with respect to the manner of service of the claim, three issues must be resolved in order to determine the validity and timeliness of the claim: (1) whether the claim was properly filed by an estate representative, (2) the effective date of service of the claim, and (3) whether the defendant waived its objection or defense with respect to timeliness of the claim.

Inasmuch as the claim was filed on January 5, 2007, the same date the claimant was appointed administratrix of the decedent's estate, the Court finds that the claim was properly filed by an individual with capacity to sue (cf. Lichtenstein v State of New York, supra).

It has been determined that the notice of intention served on March 28, 2005 with respect to the injuries sustained by the decedent on January 5, 2005 effectively extended the statutory period in which to file and serve a claim to January 5, 2007. Both filing and service of the claim must be completed within this two-year time frame (see Court of Claims Act § 10 (3) and Dreger v New York State Thruway Auth., 81 NY2d 721 [1992]) .

Although the defendant has withdrawn its defense relative to improper service, the timeliness of the claim remains an issue. Court of Claims Act § 11 (a) (i) provides that "[s]ervice by certified mail, return receipt requested, upon the attorney general shall not be complete until the claim or notice of intention is received in the office of the attorney general". However, no similar provision is made, for rather obvious reasons, relative to service by ordinary mail. In Jackson v State of New York (85 AD2d 818 [1981]), the Appellate Division, Third Department, rejected the contention that service of a claim by ordinary mail was complete on the date it was mailed pursuant to CPLR 2103(b), noting this section applies only to papers served in a pending action and that no action is pending against the State until after the claim is served[1]. As a result, the Court finds that service was completed on the date the claim was received by the Attorney General (see generally Espinal v State of New York, 159 Misc 2d 1051 [1993]). Since the claim was mailed on January 4, 2007, it was received on or after January 5, 2007. Of course, if the claim was received by the Attorney General after January 5, 2007, it was untimely with respect to the claim which accrued on January 5, 2005. The date of receipt matters not, however, as no defense was raised with regard to untimely service of the claim. In this regard, Court of Claims Act § 11 (c) provides that "[a]ny objection or defense based upon failure to comply with (i) the time limitations contained in section ten of this act ... is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure". The particularity requirement was exhaustively discussed by Judge James P. King in Sinacore v State of New York (176 Misc 2d 1 [1998]) who noted (at p. 8) with respect to a defense of untimeliness that, "at a minimum, the defendant should state that the claim was untimely filed and served 'in violation of Court of Claims Act §§ 10 and 11' (see, Smith v State of New York, Ct Cl, filed July 20, 1993, Benza, J., Claim No. 85799, motion No. M-48029) or that the claim had not been timely served within a particular time period 'prescribed by Court of Claims Act §§ 10 and 11' " ([citation omitted]; see also Firth v State of New York, 184 Misc 2d 105, 109 [2000], affd 287 AD2d 771 [2001], affd 98 NY2d 365 [2002]). Where there exists more than one date of accrual, such as in the case of a claim for personal injuries and wrongful death (see Court of Claims Act §§ 10 [2] and 10 [3]), simply alleging that the court lacks jurisdiction in whole or in part has been held insufficiently particular to apprise the claimant of the defect to which the defendant is alluding (see Duverger v State of New York, 15 Misc 3d 1119[A] [2007]).

Here, the defenses raised with respect to the timeliness of the claim were specifically based solely upon the proposition that the notices of intention were nullities, not on any purported fact that the claim was served after the expiration of the statutory period for serving and filing the claim. Accordingly, the Court finds that the defendant waived any defense it may have had with respect to the untimely service of the claim (Court of Claims Act § 11 [c] [i]). Since the defendant failed to raise any objection regarding timeliness (other than those which related to the notices of intention) in a pre-answer motion to dismiss or as an affirmative defense in its answer, any defense with respect to the timeliness of the claim which accrued on January 5, 2005 was waived.

With regard to the claim for negligence and or medical malpractice occurring subsequent to January 5, 2005, the cause of action accrued, so far as discernable from the claim, upon the claimant's admission to the hospital on March 3, 2005. The Court has already determined that the notice of intention relating to this claim was timely. Therefore, the claim filed on January 5, 2007 which was served by ordinary mail on or after January 5, 2007 and re-served by certified mail on February 5, 2007 also appears timely (Court of Claims Act § 10 [3]). Regardless of the accrual date, however, the defendant's failure to raise an objection to the timeliness of the claim on this basis in either a pre-answer motion to dismiss or as a defense in its answer effects a waiver of this defense for the reasons set forth above pursuant to Court of Claims Act § 11 (c) (i).

The defendant argues that the time to file and serve the claim for personal injuries expired one year after the decedent's death pursuant to CPLR 210 (a). CPLR 210 (a) is a tolling provision which provides that where a person dies before the expiration of the time within which to commence an action, and the cause of action survives, an action may be commenced by his representative within one year following the decedent's death. In recognition of the fact that the filing and service requirements of Court of Claims Act § 10 (3) are jurisdictional prerequisites to the maintenance of an action against the State, CPLR 210 (a) has been held inapplicable to extend the time limitations set forth therein (see Pelnick v State of New York, 171 AD2d 734 [1991]; Kaplan v State of New York, 152 AD2d 417 [1989]). CPLR 210 (a) may not be used to limit the time otherwise available for service and filing of a claim pursuant to the Court of Claims Act (Loperfido v State of New York, Ct Cl, April 13, 2006 [Claim No.110163, Motion Nos. M-70229, CM-70433, UID # 2006-028-546] Sise, J., unreported). Separate and apart from the inapplicability of CPLR 210 (a) to the conditions precedent to suit contained in Court of Claims Act § 10 (3), it has been recognized that "CPLR 210 (a) is designed to extend periods of limitation that would otherwise expire shortly after a plaintiff's death. It does not operate to reduce statutory periods that would otherwise have more than one year to run"(Gordon v Gordon, 110 AD2d 623, 624 [1985]).

The defendant's cross-motion to dismiss the claim as untimely is denied.

Claimant's Request For Leave To Amend The Claim

The Court turns to the claimant's request to amend the claim to assert what is now denominated a cause of action for wrongful death (see the second cause of action in the proposed Further Amended Claim For Damages For Negligence), a newly added third cause of action for conscious pain and suffering, and a newly added fourth cause of action for loss of consortium. In this Court's view, neither the claim nor the amended claim previously filed and served allege a cause of action for wrongful death.

New York law permits recovery on a wrongful death cause of action for "fair and just compensation for the pecuniary injuries resulting from the decedent's death to the persons for whose benefit the action is brought" (EPTL § 5-4.3 a). Recovery is restricted to injuries measurable in money damages and does not include recovery for grief, loss of society, affection, conjugal fellowship and consortium (Gonzalez v New York City Hous. Auth., 77 NY2d 663, 667-668 [1991]; Liff v Schildkrout, 49 NY2d 622, 633-634 [1980]). The essence of a cause of action for wrongful death is that "the [claimant's] reasonable expectancy of future assistance or support by the decedent was frustrated by the decedent's death" (Gonzalez v New York City Hous. Auth. 77 NY2d at 668). The elements of damages recoverable include medical and funeral expenses, loss of support and assistance, and loss of parental care and guidance (id. at 668; Sand v Chapin, 238 AD2d 862 [1997]). Such a cause of action inures only to the benefit of the decedent's distributees (EPTL § 5.4.1, 5-4.3[a]; Sand v Chapin, 238 AD2d at 864).

In contrast to a cause of action for wrongful death, the measure of damages recoverable in a cause of action for conscious pain and suffering is limited to recovery for pain and suffering endured by the deceased, for expenses incurred, and for loss of earnings up to the time of death (Kordonsky v Andrst, 172 AD2d 497, 499 [1991]; EPTL § 11-3.3).

The claim filed on January 5, 2007 and the amended claim filed on February 14, 2007 allege damages for conscious pain and suffering and make no mention of pecuniary loss to the next of kin. In fact, Schedule A attached to the claims consists of a breakdown of the total sum claimed as follows: $1,000,000.00 for physical pain and suffering and $1,000,000.00 for emotional pain and suffering leading to death. Thus, in order to recover damages for wrongful death, further amendment of the claim is necessary.

The law is well-settled that leave to amend a pleading shall be freely given "absent prejudice or surprise resulting directly from the delay" (McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755, 757 [1983]; CPLR 3025 [b]). Claimant's motion to amend the claim was brought by order to show cause, which was not filed until March 6, 2007, one day following the expiration of the two-year time limitation for filing and service of a wrongful death claim pursuant to Court of Claims Act § 10 [2] (cf. Vastola v Maer, 48 AD2d 561 [1975], affd 39 NY2d 1019 [1976]). However, where the proposed amendment relates back to a timely action predicated on the same occurrence, the time limitations set forth in section 10 of the Court of Claims Act are no bar to the amendment (Mastandrea v State of New York, 57 AD2d 679 [1977]; CPLR 203 [f]). In this regard CPLR 203 (f) provides that a claim "asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading". Interpreting this section, the Court of Appeals held in Caffaro v Trayna (35 NY2d 245 [1974]) that a cause of action for wrongful death asserted in a proposed amended complaint related back to a timely action for personal injuries predicated upon the same accident (cf. Goldberg v Camp Mikan-Recro, 42 NY2d 1029 [1977]). Although Caffaro did not involve the time limitations set forth in section 10 of the Court of Claims Act, it has been relied upon in this Court to add causes of action that would have been untimely if asserted separately (see Mastandrea v State of New York, supra; Howard v State of New York, 175 AD2d 634 [1991]; Morrell v State of New York, Ct Cl, October 2000 [Claim No. 91134, Motion No. M-61906, UID # 2000-013-032] Patti, J., unreported; Matter of Iazzetta v State of New York, 105 Misc 2d 567 [1980]; cf. Nieblas v State of New York, Ct Cl, June 12, 2003 [Claim No. 103210, Motion No. M-66550, UID # 2003-028-551] Sise, J., unreported; Berry v State of New York, Ct Cl, February 10, 2004 [Claim No.106825, Motion No. M-67197, UID # 2004-031-013] Minarik, J., unreported ). So long as both the notice of intention and the claim provided notice of the occurrence, the time limitations set forth in section 10 of the Court of Claims Act provide no bar to the amendment.

The defendant argues that neither the notices of intention to file a claim nor the claim provided notice of a claim for wrongful death because nowhere is it alleged in these documents that a claim for pecuniary loss to the next of kin would be asserted. While it is true that the notice of intention and the claim state only damages for pain and suffering, they clearly set forth the fact of the decedent's death on March 5, 2005 and the circumstances surrounding it. In addition, the claim alleges that "the distributees of the decedent's Estate, have sustained damages...as a result of the decedent's untimely death". Like the facts in Dedivanaj v State of New York (13 Misc 3d 1246[A]), it cannot be said that the notice of intention and the claim did not alert the State to a potential wrongful death claim against it.

Notably, a notice of intention to file a claim need not state the items of damage or injuries and the sum claimed (Court of Claims Act § 11 [b]) nor the legal theory of recovery (Cannon v State of New York, 163 Misc 2d 623, 626 [1994]). The Court finds that the notices of intention and claim sufficiently apprised the State of the occurrence to enable it to perform a prompt investigation (cf. Rodriguez v State of New York, 8 AD3d 647 [2004]; Cendales v State of New York, 2 AD3d 1165 [2003]; Phillips v State of New York, 237 AD2d 590 [1997]). Thus, the claimant's proposed amendment to the claim adding a cause of action for wrongful death relates back to the date the original claim was filed (see CPLR 203 [f])[2].

This conclusion does not, however, warrant leave to amend the claim absent support for the contention that the decedent's death was proximately caused by negligent supervision of the decedent or medical malpractice while he was in its custody. "Where a [claimant] seeks to amend a [claim] alleging medical malpractice to add a cause of action for wrongful death, such motion must be accompanied by 'competent medical proof showing a causal connection between the alleged negligence and the decedent's death' " (Smith v Haggerty, 16 AD3d 967, 968 [2005], quoting Ludwig v Horton Mem. Hosp., 189 AD2d 986, 986 [1993]; Vastola v Maer, 48 AD2d 561 [1975], affd 39 NY2d 1019 [1976]; Glasgow v Chou, 33 AD3d 959 [2006]; Paolano v Southside Hosp., 3 AD3d 524 [2004] ; Ortiz v Bono, 101 AD2d 812 [1984]). This requirement is no less necessary where the proposed claim alleges that the defendant's ordinary negligence was the cause of death (see Feinberg v Walter B. Cooke, Inc. 240 AD2d 623 [1997], lv dismissed 90 NY2d 1008 [1997]; Fiorentino v Cobble Hill Nursing Home, 101 AD2d 825 [1984]; Mahoney v Sharma, 110 AD2d 627 [1985], but see Nowak v Sherman, 167 AD2d 843 [1990]) . Here, it is alleged that the decedent's death was caused by the defendant's negligent supervision of the decedent and medical malpractice. Absent competent medical proof that death was proximately caused by the negligence and/or medical malpractice of the defendant, leave to amend the claim to include a cause of action for wrongful death must be denied.

It should be noted that claimant's motion for late claim relief is unnecessary in light of this Court's conclusion that the proposed amendment to allege a claim for wrongful death relates back to the date the claim was filed (see Mastandrea v State of New York, supra). In any event, however, such relief would not be available as the claimant's motion for late claim relief was filed on March 6, 2007, more than two years after the date of the decedent's death on March 5, 2005 (see EPTL § 5-4.1; Court of Claims Act § 10 [6]; Loperfido v State of New York, Ct Cl, April 13, 2006 [Claim No.110163, Motion Nos. M-70229, CM-70433, UID # 2006-028-546] Sise, J., unreported); Wright v State of New York, 195 Misc 2d 597 [2003], appeal dismissed 11 AD3d 1000 [2004]).

To the extent that the proposed claim asserts a fourth cause of action for loss of consortium on behalf of the claimant (the decedent's sister) and the decedent's intestate distributees, the Court notes that loss of consortium is not a compensable element of damages in a cause of action for wrongful death (Gonzalez v New York City Hous. Auth., 77 NY2d 663 [1991]).

The Lack Of A Certificate Of Merit

As pointed out by defense counsel, to the extent the claim and amended claim allege a cause of action for medical malpractice, a certificate of merit was required to be filed pursuant to CPLR 3012-a. Upon consideration of the fact that the claimant was only recently appointed administratrix of the decedent's estate and, until then, was unable to obtain the decedent's medical records, the Court finds that she had a reasonable excuse for failing to file and serve the certificate of merit together with the claim. Accordingly, dismissal of the claim at this early juncture in the litigation would not be appropriate (see Tewari v Tsoutsouras, 75 NY2d 1 [1989]; Markowitz v State of New York, 37 AD3d 1106 [2007]; cf. Horn v Boyle, 260 AD2d 76 [1999], lv denied 94 NY2d 762 [2000]). Accordingly, the Court directs the claimant to file and serve a certificate of merit pursuant to CPLR 3012-a within thirty days of service of a copy of this order with notice of entry.

Conclusion

Based on the foregoing, the claimant's motion is granted only to the extent of dismissing the defendant's affirmative defenses numbered sixth, seventh, eighth and ninth in its answer to the amended claim and is otherwise denied without prejudice to renew requesting leave to amend the claim to add a cause of action for wrongful death on proper papers which shall include competent medical proof of a causal connection between the alleged negligence/malpractice and the death of the decedent. Defendant's cross-motion is denied except to the extent of requiring the claimant to file a certificate of merit pursuant to CPLR 3012-a within thirty days of service of a copy of this order with notice of entry.


June 26, 2007
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:

  1. Order to Show Cause dated March 2, 2007;
  2. Affidavit of Marleen Isolina Rodriguez sworn to February 21, 2007 with exhibits;
  3. Affirmation of Lee David Klein dated February 27, 2007 with exhibits;
  4. Notice of cross-motion dated March 28, 2007;
  5. Affirmation of Belinda A. Wagner dated March 28, 2007;
  6. Affirmation of Lee David Klein dated April 16, 2007 with exhibits;
  7. Amended Affirmation of Belinda A. Wagner dated April 20, 2007.



[1]. Jackson v State of New York, supra, was decided prior to the date of the 1984 amendment to Court of Claims Act § 11 which specified the manner of service on the Attorney General personally or by certified mail, return receipt (L. 1984, ch. 427).

[2]. Such an amendment does not seek to cure a jurisdictional defect relating to the pleading requirements of Court of Claims Act §§ 10 and 11 (see Matter of O'Shea v State of New York, 36 AD3d 706 [2007]; Acosta v State of New York, 270 AD2d 164 [2000]; Cannon v State of New York, 163 Misc 2d 623, 626 [1994]; cf. Sega v State of New York,246 AD2d 753 [1998], lv denied 92 NY2d 805 [1998]).