New York State Court of Claims

New York State Court of Claims

STEWART v. THE STATE OF NEW YORK, #2007-016-049, Claim No. 113031, Motion Nos. M-73507, CM-73705


Motion to amend claim to allege total sum claimed or for permission to file a late claim was denied as moot. Cross-motion to dismiss for failure to state a total sum claimed or to adequately plead negligent hiring and supervision and lack of informed consent causes of action was denied.

Case Information

CHANNELLE STEWART, an infant by her Mother and Natural Guardian, NADINE Williams, and NADINE WILLIAMS, Individually
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Alan C. Marin
Claimant’s attorney:
Friedman, Khafif & Sanchez, LLPBy: Andrew M. Friedman, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Mary Y.J. Kim, Esq., AAG
Third-party defendant’s attorney:

Signature date:
November 30, 2007
New York

Official citation:

Appellate results:

See also (multicaptioned case)


In this claim, it is alleged that claimant Channelle Stewart was improperly treated at SUNY Downstate Medical Center in Brooklyn in connection with a stomach tumor. Claimants move for an order permitting them to amend their claim to allege a total sum claimed or, in the alternative, permitting them to file a late claim pursuant to §10.6 of the Court of Claims Act (the “Act”). Defendant cross-moves for an order dismissing the claim on the grounds that: (1) it fails to state a total sum claimed; (2) for the purposes of §11.b of the Act, it inadequately states a causes of action for negligent hiring and supervision (the second cause of action); and (3) for the purposes of §11.b, it inadequately states a cause of action for lack of informed consent (the third cause of action). Defendant has not moved with respect to claimants’ main (first) or derivative (fourth) causes of action. By recent amendment of §11.b of the Act, a total sum claimed is not required in cases alleging personal injury, medical malpractice or wrongful death, which conforms to Supreme Court practice (see Chapter 606 of the Laws of 2007). Such claims must still “state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained . . .” Court of Claims Act, 11.b.

With regard to the second and third causes of action, defendant’s motion is effectively one grounded on claimants’ alleged failure in its pleading to sufficiently state the nature of the claim for the purposes of §11.b, which standard has been described as one that would “‘enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances.’” Triani v State of New York, 44 AD 3d 1032 (2d Dept 2007).[1]

As to negligent hiring and supervision, claimants have separately pled such a cause of action, but in fact, it need not be separately pled and may be inferred where, as in this case, the main cause of action is “sufficiently broad to include” same. Pickering v State of New York, 30 AD 3d 393, 394, 816 NYS2d 566, 567 (2d Dept 2006). See also Fung v State of New York, Ct Cl, November 8, 2006 (unreported, claim no. 102762, motion no. M-70980, UID #2006-027-521[2], Waldon, J.) In any event, I find that claimant has adequately pled such a cause of action for the purposes of §11.b of the Act.

With regard to lack of informed consent, subdivision 3 of Public Health Law §2805-d provides that “[f]or [such] a cause of action . . . it must also be established that a reasonably prudent person in the patient’s position would not have undergone the treatment or diagnosis if he had been fully informed and that the lack of informed consent is a proximate cause of the injury or condition for which recovery is sought.” Claimants have specifically made such allegations in ¶¶xxi and xxii of the claim, and I find that they have adequately pled this cause of action for the purposes of §11.b.

Accordingly, having reviewed the submissions[3], IT IS ORDERED that motion no. M-73507 be denied as moot and that cross-motion no. CM-73705 be denied.

November 30, 2007
New York, New York

Judge of the Court of Claims

  1. [1] The Triani court was quoting Grumet v State of New York, 256 AD2d 441, 442, 682 NYS2d 86 (2d Dept 1998), which, for its part, had quoted Heisler v State of New York, 78 AD2d 767, 433 NYS2d 646 (4th Dept 1980). Triani was a slip and fall case; the Second Department in Rodriguez v State of New York, 8 AD3d 647, 779 NYS2d 552, 553 (2004), an action for medical malpractice, stated that in setting forth the “nature of the claim,” the pleadings should “provide an indication of the manner in which the claimant was injured and how the State was negligent.”
  1. [2]This and other decisions of the Court of Claims may be found on the Court’s website:
  2. [3]The following were reviewed: claimants’ Notice of Motion with annexed Affirmation and exhibits A through D; and defendant’s Notice of Cross-Motion with annexed Affirmation in Opposition.