New York State Court of Claims

New York State Court of Claims

GASQUEZ v. KOMONOFF GERIATRIC AND REHABILITATION CENTER, #2007-033-235, Claim No. 112705, Motion No. M-72549


Synopsis



Case Information

UID:
2007-033-235
Claimant(s):
ROSALIE GASQUEZ as Executor of the Estate of HENRY GASQUEZ, Deceased
Claimant short name:
GASQUEZ
Footnote (claimant name) :

Defendant(s):
KOMONOFF GERIATRIC AND REHABILITATION CENTER
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112705
Motion number(s):
M-72549
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Robert P. Macchia & AssociatesBy: Robert A. Monahan, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Ross N. Herman, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 14, 2007
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim by Rosalie Gasquez as Executor of the Estate of Henry Gasquez (hereinafter “claimant”) for the alleged medical malpractice of Komonoff Geriatric and Rehabilitation Center (hereinafter “Komonoff”) located in Long Beach, New York. The alleged malpractice occurred on September 23, 2005. Claimant served the Attorney General’s Office with a notice of intention on February 16, 2006. The claim was served and filed on August 31, 2006.


Defendant moves to dismiss for lack of jurisdiction and untimeliness of the claim[1]. Defendant provides an affidavit from the Assistant Director of the Division of Health Facility Planning of the New York State Department of Health. He avers that the named defendant in the instant action is operated by a not for profit corporation, Long Beach Memorial Nursing Home, Inc. The only nexus to the State of New York is that a nursing home must get approval from the Public Health Council before it is permitted to incorporate. Komonoff is neither owned nor operated by the State of New York.

In addition, defendant argues that the claim is untimely. The alleged medical malpractice occurred on September 23, 2005. The notice of intention was not served upon the Attorney General’s Office until after 90 days had expired. Further, defendant argues, the claim was not served until more than 90 days after the letters testamentary were issued.

In opposition, claimant argues that it is premature to dismiss and discovery should be allowed to take place.

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. It is well settled that if the filing is not timely then the claim is subject to dismissal (Greenspan Bros. v State of New York, 122 AD2d 249).

The establishment of the court system is found in Article VI of the New York State Constitution. Article VI, §7 states that the Supreme Court shall "have general original jurisdiction in law and equity and the appellate jurisdiction herein provided."
The Supreme Court in this State is a court of general original jurisdiction in law and equity (see N. Y. Const., art. VI, §7, subd. a.) and, in conformity with its all inclusive powers, the court is authorized in any action to render such judgment as is appropriate to the proofs received in conformity with the allegations of the pleadings, irrespective of the nature of the relief demanded, subject, of course, in a proper case, to the imposition of such terms as may be necessary to protect the rights of any party.

(Kaminsky v Kahn, 23 AD2d 231, 236).

Separately, the Court of Claims is established by NY Const. Art. VI, §9, which states, in relevant part that "[t]he court shall have jurisdiction to hear and determine claims against the state or by the state against the claimant or between conflicting claimants as the legislature may provide." The Court of Claims is limited to awarding money damages against the State of New York (Matter of Silverman v Comptroller of The State of New York, 40 AD2d 225).

Claimant offers nothing to this Court to aid her position. There is no evidence of any connection between the State of New York and Komonoff. As previously noted, this Court has no jurisdiction over private individuals/corporations. The jurisdiction over such persons/entities lies squarely in the purview of supreme court. This Court has no color of authority to conduct discovery in this matter.

Court of Claims Act §10(2) states that a claim for the wrongful death shall be served on the attorney general and filed with the clerk of the court within 90 days of an appointment of an executor or administrator, unless within such time claimant has served a notice of intention upon the State. No controversy exists in this matter as to the timeliness of claimant’s wrongful death action. Claimant was appointed as the executor of decedent’s estate on May 19, 2006.[2] The claim was not served until August 31, 2006, approximately 104 days after the letters testamentary were issued. Claimant argues that she served a notice of intention and thus, had two years from the date of death to file a claim. In this matter, the notice of intention was served 146 days after the accrual date. The Court finds that the claim for wrongful death is untimely.

A claim for conscious pain and suffering is untimely unless it is served within 90 days of the date of accrual (Court of Claims Act §10(3); Bourguignon v City of New York, 157 AD2d 644). As mentioned, the notice of intention was untimely. Therefore, the claim for conscious pain and suffering was served 342 days after the date of accrual. The claim for conscious pain and suffering is untimely.

Based upon the foregoing, defendant’s motion to dismiss is granted. The Clerk of the Court is directed to close the file.



March 14, 2007
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 November 15, 2006 and filed November 17, 2006; Affirmation in Support of Ross N. Herman, Esq. with annexed Exhibits A-D dated November 15, 2006 and filed November 17, 2006; Affirmation in Opposition of Robert A. Monahan, Esq. with annexed Exhibit A dated December 19, 2005 (sic) and filed December 21, 2006; Reply Affirmation in Support of Motion to Dismiss of Ross N. Herman, Esq. with annexed Exhibits 1-2 dated December 20, 2006 and filed December 21, 2006.
[2].Exhibit A of claimant’s opposing affirmation is the alleged letters testamentary. The Court notes however the order does not seem to be in the regular form from a court. In addition, the letters lack the signature of the Surrogate’s Court judge as well as the seal of the court.