New York State Court of Claims

New York State Court of Claims

RICHE v. THE STATE OF NEW YORK, #2007-036-248, , Motion No. M-74100


Case Information

In the Matter of the Claim of MAGDALINE RICHE
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):

Claimant’s attorney:
Defendant’s attorney:
By: Ross N. Herman, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 19, 2007
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for leave to file a late claim for medical malpractice and wrongful death of an infant born to her. Defendant opposes on the grounds the requested relief does not exist under the Court of Claims Act.[1] Ms. Riche alleges her prematurely born infant died five hours after birth on August 12, 2006 at Downstate Medical Center (“Downstate”) because defendant failed to perform an emergency delivery by C-section. On July 30, 2007, this court decided claimant’s motion for leave to file a late “notice of intention” which is not an available form of relief. Rather, the court construed the motion as a request to file a late claim pursuant to Court of Claims Act § 10 (6) and denied it because of several deficiencies in the submission. Now, Ms. Riche renews her application to file a late claim.

Claimant lacks standing to bring a wrongful death action. Court of Claims Act § 10 (2) provides that a wrongful death claim must be filed and served or a notice of intention to file such a claim must be served by the decedent’s executor or administrator within ninety days of appointment as executor or administrator. Ms. Riche’s papers acknowledge that no such appointment has yet been made. She cannot file a claim for wrongful death of the deceased infant at this time.

Claimant alternately requests that her claim be considered as one for emotional distress under Broadnax v Gonzalez, 2 NY3d 148 [2004], where the Court of Appeals, overturning precedent, held that a mother who gave birth to a stillborn child may recover for emotional harm when medical malpractice causes a stillbirth, absent a showing of independent physical injury to her. Ms. Riche asks the court to apply Broadnax to this case where her child was born alive, but died five hours later. She cites Mendez v Bhattacharya, 15 Misc 3d 974, 982 [Sup Ct Bronx County 2007] “where the baby showed minimal signs of life (heartbeat) upon birth for a momentary period, but the baby was never viable nor showed any signs of consciousness” and the court also ruled the mother had a viable cause of action for emotional distress pursuant to Broadnax.

Mendez v Bhattacharya, a trial court decision not binding on this court, was factually unique in that the infant was born alive but pronounced dead forty-five minutes later never having shown any signs of consciousness, in contrast with the Riche infant who lived for five hours during which her vital signs improved.[2] The court agrees with defendant that Broadnax does not apply to the mother of a child born live showing viability in its early hours. There is no ambiguity in the Court of Appeals’ decision: “we limit a mother’s recovery only to damages for the emotional distress attending a stillbirth or miscarriage caused by medical malpractice.” Broadnax, 2 NY3d at 155 n. Ms. Riche did not deliver a stillborn child on August 12, 2006 and is excluded from the reach of Broadnax. She, therefore, has no cause of action for emotional distress.

Accordingly, for the reasons discussed above, the motion for leave to file a late claim is denied.

December 19, 2007
New York, New York

Judge of the Court of Claims

[1].The court considered the following papers on the motion: claimant’s notice of motion dated October 9, 2007, together with affirmation in support, and exhibits; defendant’s affirmation in opposition dated November 5, 2007 and exhibit; claimant’s reply dated November 12, 2007 and exhibit.
[2].The Mendez child was given an initial Apgar score of 1, a measure of a newborn’s physical condition after delivery ranging from 0 to 10, then five minutes later scored 0 - never to rise. The court in Mendez v Bhattacharya said, “even if there was technical sign of life due to the lingering heartbeat, . . . the child was not viable, since there was no other sign of life besides the heartbeat; nor was there any sign of consciousness of any kind.” 15 Misc 3d at 982. In contrast, the Riche infant also was given an initial Apgar score of 1, but her score rose subsequently as high as 7.