New York State Court of Claims

New York State Court of Claims

BROWNE v. STATE OF NEW YORK, #2007-039-023, Claim No. 108262, Motion Nos. M-72435, M-72576; CM-72557


Synopsis


Defendant’s motion to vacate portion of Court’s daily report imposing a temporal restriction on defendant’s ability to move for summary judgment based upon the lack of subject matter jurisdiction granted. Defendant’s motion to dismiss the claim for lack of subject matter jurisdiction denied. The nature of the claim - medical malpractice related to multiple surgeries performed on claimant’s left leg over a reasonably defined period of time - was alleged with sufficient particularity pursuant to Court of Claims Act § 11 (b)

Case Information

UID:
2007-039-023
Claimant(s):
CARMELA BROWNE
Claimant short name:
BROWNE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108262
Motion number(s):
M-72435, M-72576; CM-72557
Cross-motion number(s):

Judge:
JAMES H. FERREIRA
Claimant’s attorney:
Siben & FerberBy: Edward C. Lehman, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New YorkBy: Mary Oleske, AAG and Ross N. Herman, AAG
Third-party defendant’s attorney:

Signature date:
May 31, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The instant claim was filed with the Court on September 11, 2003. Issue was joined and, on September 20, 2006, a telephone conference was held between the Court and counsel for the parties. Following the conference, the Court issued a written order entitled Daily Report and dated September 20, 2006. The order provides, among other things, that “[w]ithin 30 days, Defendant shall move on any jurisdictional grounds raised in its answer or such defenses shall be deemed waived.” In October 2006, defendant moved to vacate this provision from the Daily Report. In November 2006, after more than three years of litigation, including depositions and written discovery, defendant moved to dismiss the claim on the grounds that the Court lacks subject matter jurisdiction pursuant to Court of Claims Act § 11 (b). Claimant opposed the motions and cross moved the Court for an order striking defendant’s first, second, third and fourth affirmative defenses as untimely and amending the caption to substitute the deceased claimant’s personal representative. The Court now addresses the parties’ motions.

The Court finds in the first instance that it must vacate its September 20, 2006 Daily Report to the extent that the order imposes a temporal restriction on defendant’s ability to move the Court for an order dismissing the claim for lack of subject matter jurisdiction. It is well settled that the “substantive conditions upon the State’s waiver of sovereign immunity” found within Court of Claims Act § 11 (b) are concerned with the Court’s subject matter jurisdiction (Lepkowski v State of New York, 1 NY3d 201, 207 [2003]). The law is clear - “[a] lack of subject matter jurisdiction is a defect that cannot be overlooked or remedied by either waiver or estoppel” (Rodriguez v State of New York, 307 AD2d 657, 657 [2003]), and “ ‘may be [raised] at any stage of the action’ ” (Matter of Metropolitan Transp. Auth., 32 AD3d 943, 944 [2006], quoting Robinson v Oceanic Steam Nav. Co., 112 NY 315, 324 [1889]). Thus, any temporal restriction placed upon defendant’s ability to assert that the Court lacks subject matter jurisdiction is not proper. It therefore stands to reason that claimant’s cross motion to strike defendant’s first, second, third and fourth affirmative defenses on the ground that the defenses are untimely pursuant to the Court’s September 20, 2006 Daily Report must be denied.

The Court further finds that defendant’s motion to dismiss the claim is without merit. In support of the motion, defendant contends that claimant has failed to allege the nature of the claim with sufficient particularity pursuant to Court of Claims Act § 11 (b). More specifically, defendant contends that claimant has failed to allege “ ‘the manner in which the claimant was injured and how the defendant was negligent’ ” (Affirmation in Support of Motion to Dismiss, p 2, ¶ 5, quoting Oliver v State of New York, Ct Cl, Waldon, J., July 12, 2006, revd 2007 NY Slip Op 04090 [2007]). “[T]he State as sovereign may not be sued except with its consent . . . it may attach such terms and conditions to its consent as the Legislature deems proper, and . . . such terms and conditions are jurisdictional requirements” (Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]). “ ‘ Because 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’ ” (Lepkowski v State of New York, supra at 206-207 [citations omitted]). Some of these statutory requirements can be found at section 11 (b) of the Court of Claims Act which provides, among other things, that the nature of the claim must be stated within the claim. The purpose of section 11 (b) is to provide the State with “a sufficiently detailed description of the particulars of the claim to enable it to investigate and promptly ascertain the existence and extent of its liability” (O’Shea v State of New York, 36 AD3d 706, 707 [2007]).

Upon a review of the claim and application of the foregoing principles, the Court finds that the nature of the claim is alleged with sufficient detail to satisfy the requirements of section 11 (b). The claim provides, in relevant part, that “the claim arose on or about December 3, 2001, when the claimant was a patient under the professional care of the defendant, its agents, servants and/or employees, and was caused to be injured as a result of medical malpractice by [various physicians] and/or other agents, servants and/or employees of the respondent, State of New York.” The claim further provides, in relevant part, that “the claimant was caused to sustain severe, serious and permanent personal injuries as a result of multiple surgeries performed between December 3, 2001 and February, 2002, on her left leg at Stony Brook University Hospital, due to negligence and medical malpractice on the part of the aforesaid hospital, its medical staff, physicians, residents, attending physicians and nurses in the care of . . . claimant . . . on, after, and prior to December 3, 2001, and in the course of post operative care through May, 2002.”

The nature of the claim - medical malpractice related to multiple surgeries performed on claimant’s left leg over a reasonably defined period of time - is apparent. Claimant does not recite mere boilerplate to describe the nature of her claim (see Oliver v State of New York, supra), and she provides greater specificity in her recitation of the nature of the claim than was provided in Condolff (18 AD3d 797, 798 [2005]). There, the Court concluded that the nature of the claim was sufficiently stated where it was alleged, “among other things, that the defendant breached a duty of care owed to the injured claimant . . . by failing to develop and adhere to reasonable procedures for reviewing the qualifications of its credentialed medical staff, and that such breach was a proximate cause of the injured claimant’s injuries” (id.). Moreover, unlike “the time when and place where [the] claim arose” (Court of Claims Act § 11 [b]), the precise nature of a claim is not always known at the inception of an action. Thus, the burden imposed upon claimants is to provide enough information to enable the State to investigate the extent of its liability (see O’Shea v State of New York, supra at 707). Here, the Court concludes that claimant satisfied her burden and “the purpose underlying Court of Claims Act § 11 (b) was clearly served” (id.).

Finally, the Court notes that defendant has no objection to claimant’s request to amend the caption to substitute the deceased claimant’s personal representative. Accordingly, this aspect of claimant’s motion is granted.

Accordingly, it is hereby

ORDERED that defendant’s motion to vacate the Court’s September 20, 2006 Daily Report is granted to the extent provided in the Court’s Decision and Order; and it is further

ORDERED that defendant’s motion to dismiss the claim is denied; and it is further

ORDERED that claimant’s motion to strike defendant’s first, second, third and fourth affirmative defenses is denied; and it is further

ORDERED that claimant’s motion to amend the caption to substitute the deceased claimant’s personal representative is granted; and it is further

ORDERED that claimant shall file an amended claim substituting the deceased claimant’s personal representative with the Chief Clerk of the Court within 30 days from the date of this Decision and Order.

May 31, 2007
Albany, New York
HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered:
  1. Notice of Motion to Vacate (M-72435) filed on October 23, 2006;
  2. Affirmation in Support of Defendant’s Motion to Vacate affirmed on October 19, 2006 with exhibits;
  3. Notice of Cross Motion to Amend Caption and Strike Affirmative Defenses (CM-72557) filed on November 20, 2006;
  4. Affirmation in Support of Motion to Amend Caption and Strike Affirmative Defenses affirmed on November 15, 2006 with exhibits;
  5. Reply Affirmation in Support of Motion to Vacate and In Opposition to Cross Motion affirmed on December 12, 2006;
  6. Notice of Motion to Dismiss Claim (M-72576) filed on November 27, 2006;
  7. Affirmation in Support of Motion to Dismiss affirmed on November 22, 2006 with exhibits;
  8. Affirmation in Opposition to Motion to Dismiss Claim affirmed on December 14, 2006 with exhibits;
  9. Reply Affirmation in Support of Motion to Dismiss Claim affirmed on December 20, 2006;
  10. Further Affirmation in Opposition to Motion To Dismiss Claim affirmed on January 25, 2007 with exhibits;
  11. Reply Affirmation in Further Support of Motion to Dismiss affirmed on February 8. 2007; and
  12. Correspondence from Ross N. Herman, AAG dated March 23, 2007.