Claim is dismissed sua sponte for lack of jurisdiction. Claimant's motions to compel production of witnesses and documents and for a change of venue are denied as moot.
|Claimant(s):||MICHAEL A. DAVIS|
|Claimant short name:||DAVIS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-72979, M-72980, M-72982, M-72983, M-72984, M-72985|
|Judge:||RENÉE FORGENSI MINARIK|
|Claimant's attorney:||MICHAEL A. DAVIS, PRO SE|
|Defendant's attorney:||HON. ANDREW M. CUOMO
New York State Attorney General
BY: HEATHER R. RUBINSTEIN, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 7, 2007|
|Appellate results:||64 AD3d 1197|
|See also (multicaptioned case)|
The following papers, numbered 1 through 9, were read on six motions by Claimant in which he seeks the production of certain documents, witnesses and a change of venue:
1. Claimant's Notice of Motion (M-72979) with supporting papers, filed February 23, 2007;
2. Claimant's Notice of Motion (M-72980) with supporting affidavit, filed February 23, 2007;
3. Claimant's Notice of Motion (M-72982) with supporting papers, filed February 23, 2007;
4. Claimant's Notice of Motion (M-72983) with supporting affidavit, filed February 23, 2007;
5. Claimant's Notice of Motion (M-72984) with supporting affidavit, filed February 23, 2007;
6. Claimant's Notice of Motion (M-72985) with supporting affidavit, filed February 23, 2007;
7. Affirmation of Heather R. Rubinstein, Esq., dated March 20, 2007;
8. Claimant's unsworn Reply dated March 28, 2007;
9. Filed Documents: Claim and Answer.
Claimant has filed six motions relating to this matter. With one motion (M-72980), Claimant seeks a change of venue. The other five motions request the production of either documents or witnesses. In his claim filed on October 3, 2002, Claimant alleges that between July 15, 2002 and approximately September of 2002, agents of Defendant committed medical malpractice by not adequately examining a lump near Claimant's sternum.
In reviewing these motions, the underlying claim in this matter has been brought to the Court's attention. This raises a very different question of a jurisdictional nature which must be addressed. The claim alleges that Claimant was concerned about a lump on his sternum and that he was unhappy with what he described as a cursory examination of this lump without further diagnostic testing. The claim does not allege, however, that agents of Defendant failed to properly diagnose any medical condition or abnormality. The claim also fails to indicate how Claimant has suffered injury as a result of the alleged malpractice. In Lepkowski v State of New York, 1 NY3d 201, the Court of Appeals stated:
"The State's waiver of immunity from suits for money damages is not absolute, but rather is contingent upon a claimant's compliance with specific conditions placed on the waiver by the Legislature . . . Further, '[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed' (Lichtenstein v State of New York, 93 NY2d 911, 913 , quoting Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ). As relevant here, section 11 (b) 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.'"
Lepkowski at 206, 207.
Claimant has failed to set forth item number 4 (the items of damage or injuries claimed to have been sustained). Failing to state the items of damage sustained as required by Court of Claims Act § 11(b) is grounds for the sua sponte dismissal of the claim for lack of jurisdiction (Matter of Fry v Village of Tarrytown, 89 NY2d 714; Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670; Lublin v State of New York, 135 Misc 2d 419, affd 135 AD2d 1155).
It is well settled that a court cannot ignore the fact that subject matter jurisdiction of an action brought before it is lacking. Such a jurisdictional defect can be raised at any time, or even sua sponte (CPLR 3211(e); Eckert v Eckert, 34 AD2d 684; Williams v State of New York, Ct Cl, August 17, 2001 [Claim No. 102081, Motion Nos. M-63063, M-63531], Collins, J., UID No. 2001-015-171; see also Matter of Fry v Village of Tarrytown, 89 NY2d 714, 718).
Based on the foregoing, it is
ORDERED, that the claim in this matter is dismissed, sua sponte, for lack of subject matter jurisdiction. Claimant's motions are denied as moot.
June 7, 2007
Rochester, New York
RENÉE FORGENSI MINARIK
Judge of the Court of Claims