New York State Court of Claims

New York State Court of Claims

PICKELL v. THE STATE OF NEW YORK, #2007-015-250, Claim No. 113130, Motion No. M-73881


Synopsis


Motion of administratrix of the estate of the deceased claimant to amend claim to substitute herself as claimant and to amend claim to assert a cause of action for wrongful death was granted.

Case Information

UID:
2007-015-250
Claimant(s):
LEONARD PICKELL and MARLENE PICKELL
Claimant short name:
PICKELL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113130
Motion number(s):
M-73881
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Broder & ReiterBy: Jonathan C. Reiter, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney GeneralNo Appearance
Third-party defendant’s attorney:

Signature date:
October 29, 2007
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Marlene Pickell moves as administratrix of the estate of Leonard Pickell to amend the claim to substitute herself in place of the deceased claimant and to amend the claim to assert a cause of action for wrongful death. The original claim asserts an action for medical malpractice arising out of the alleged failure to properly treat Leonard Pickell for diabetic foot ulcers from July 7, 2005 through August 21, 2006 while he was incarcerated at various State prisons. Leonard Pickell died on June 13, 2007, allegedly as the result of the malpractice. In support of the motion, the movant submitted Letters of Administration issued on July 16, 2007 appointing the movant as administratrix of the Estate of Leonard Pickell for the sole purpose of pursuing a pending lawsuit on behalf of the deceased. Also submitted in support of the motion was an affirmation from Louis S. Roh, M.D. indicating that the death of the deceased was caused by a pulmonary thromboembolism following surgery on the right lower extremity which was necessitated by the development and progression of diabetic foot ulcers. Court of Claims Act § 15 places an affirmative obligation upon the estate representative to secure from the Court of Claims and serve upon the Attorney General an order substituting him or her as the estate representative within six months after the date of the appointment. The motion, having been made well within the applicable time frame, is therefore granted and the caption is amended as follows:
MARLENE PICKELL, as Administratrix of the Estate of LEONARD PICKELL, deceased, and MARLENE PICKELL, Individually,
Claimant
v

THE STATE OF NEW YORK,
Defendant


With regard to the request that the claim be amended to include a cause of action for wrongful death, EPTL §§ 5-4.1 and 1-2.13 provide that such a claim must be commenced within two years of the decedent's death. Court of Claims Act § 10 (2) requires that the claim be filed and served within ninety days following the appointment of the estate representative, unless a notice of intention is served upon the Attorney General within the same 90 day period. As the request to amend the claim to add a cause of action for wrongful death was made within ninety days of the appointment of the estate representative and the defendant does not oppose the motion, the motion to amend the claim to add a cause of action for wrongful death is granted.

Accordingly, claimant's motion to amend the claim to substitute Marlene Pickell as administratrix of the estate of Leonard Pickell in place of Leonard Pickell, deceased, and to amend the claim to add a cause of action for wrongful death is granted. The claimant is directed to file and serve the amended claim in the form proposed within thirty days of the date this Decision and Order is filed with the Clerk of this Court.



October 29, 2007
Saratoga Springs, New York

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


The Court considered the following papers:

  1. Notice of motion dated August 1, 2007;
  2. Affirmation of Jonathan C. Reiter dated August 1, 2007 with exhibits.