New York State Court of Claims

New York State Court of Claims

CAGGIANO v. THE STATE OF NEW YORK, #2007-041-024, Claim No. 112104, Motion Nos. M-72186, CM-72228


Synopsis

Court lacks jurisdiction over claim which fails to state injuries claimed to have been sustained, as required by Court of Claims Act § 11 (b).

Case Information

UID:
2007-041-024
Claimant(s):
MICHAEL CAGGIANO AND DONNA CAGGIANO
1 1.The caption is amended to reflect the only proper defendant.
Claimant short name:
CAGGIANO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption is amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112104
Motion number(s):
M-72186
Cross-motion number(s):
CM-72228
Judge:
FRANK P. MILANO
Claimant’s attorney:
McGIVNEY & KLUGER, P.C.By: Christopher A. Bacotti, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney GeneralBy: Marcie K. Glasser, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 5, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimants move to amend their medical malpractice claim to “include specificity of damages.” Defendant cross-moves to dismiss the action on the basis that the Court lacks jurisdiction over the claim. In particular, defendant argues that the claim fails to set forth the “injuries claimed to have been sustained” as required by Court of Claims Act § 11 (b), thus depriving the Court of jurisdiction, pursuant to the decision of the Court of Appeals in Kolnacki v State of New York (8 NY3d 277 [2007]). Harsh as it may be, the Court is constrained to apply the law as set forth in Kolnacki. The claimants’ motion to amend the claim is denied and the defendant’s cross-motion to dismiss the claim is granted.

The claim arises from an emergency room visit by Michael Caggiano at the Stony Brook University Hospital on December 26, 2005. Claimants allege that defendant failed to “properly treat, diagnose, test, inform, advise and/or take a proper patient history of claimant Michael Caggiano.” The claim was served on March 17, 2006 and filed on March 20, 2006. Defendant filed an answer on April 26, 2006.

Although claimants purportedly seek to specify their damages, what they actually request is permission to amend the claim to set forth the injuries sustained by Michael Caggiano. The claim sets forth damages of $10,000,000.00 for “severe, serious and permanent debilitating injuries, mental anguish, pain and suffering, loss of enjoyment of life, economic and pecuniary loss, and other damages.” What is missing from the claim is not damages, but the actual injuries claimed to have been sustained as a result of defendant’s alleged acts and/or omissions.

Court of Claims Act § 11 (b) provides that:
“The claim shall 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 and the total sum claimed. A claim for the appropriation by the state of lands, or any right, title or interest in or to lands shall include an inventory or itemized statement of fixtures, if any, for which compensation is claimed. The notice of intention to file a claim shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated. The claim and notice of intention to file a claim shall be verified in the same manner as a complaint in an action in the supreme court.”

In Kolnacki, the Court of Appeals held that the Court of Claims lacks jurisdiction over a claim which fails to state “the total sum claimed,” one of the requirements of section 11 (b). A claim against the State is permissible only as a result of the State’s waiver of sovereign immunity and the statutory requirements conditioning suit must therefore be strictly construed (Kolnacki, 8 NY3d at 280). The Court noted that the requirements of section 11 (b) are “substantive conditions upon the State's waiver of sovereign immunity” (quoting Lepkowski v State of New York, 1 NY3d 201, 207 [2003]) and that the failure to satisfy any of the conditions is a jurisdictional defect (Kolnacki, 8 NY3d at 280-281). The Kolnacki decision stresses that “nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary” (Kolnacki, 8 NY3d at 281).

Here, claimants have not set forth any injuries in the claim. Claimants’ attempt to explain this failure by asserting that “it was impossible to specify an injury without making it up” is unpersuasive, and, in any event, nevertheless insufficient to avoid the plain requirements of Kolnacki. Significantly, there is no affidavit from claimant Michael Caggiano, or from his treating physicians, explaining why he was unable allege that he suffers from “bilateral lower extremity paralysis” as a result of defendant’s failure to properly diagnose him on December 26, 2005, until the motion to amend the claim was made on August 23, 2006.
It is also significant that Michael Caggiano was ambulatory in the defendant’s emergency room on December 26, 2005. Thus, the recent decision of the Second Department Appellate Division in Oliver v State of New York, (40 AD3d 719 [2d Dept 2007]), to the extent it is even viewed as compatible with Kolnacki, is distinguishable from the present claim since the defendant “state hospital [in Oliver] had full and complete knowledge of the facts [presumably including the injuries] upon which the claim was based even before the claim was filed.” Even assuming that there exists some discretion under Kolnacki in reviewing the sufficiency of a claim where a claimant’s injuries are “difficult to ascertain” (see Sanchez v State of New York, 40 AD3d 450 [1st Dept 2007]), claimants have failed to offer sufficient proof to justify this Court’s exercise of such discretion.

If claimants were unable to ascertain the nature of their injuries they could have simply served a notice of intention to file a claim pursuant to Court of Claims Act § 10 (3). This would have preserved their right to file and serve a claim within two years of the accrual of the cause of action, presumably after more information about the nature of their injuries had been ascertained.

Further buttressing defendant’s position that the claimants have inadequately described their injuries is the fact that Donna Caggiano’s derivative claim, other than adding the words “loss of consortium, services, companionship and society,” identifies her injuries in language identical to that used to describe the injuries sustained by her husband Michael, someone apparently injured in a far different, and in a far more serious way than she.

In Fry v Village of Tarrytown (89 NY2d 714, 718 [1997]) the Court of Appeals reminds that “a court’s lack of subject matter jurisdiction is not waivable, but ‘may be [raised] at any stage of the action, and the court may, ex mero motu [on its own motion], at any time, when its attention is called to the facts, refuse to proceed further and dismiss the action’ (Robinson v Oceanic Steam Nav. Co., 112 NY 315, 324).”

It is also well-settled that where “a court lacks subject matter jurisdiction, the parties may not confer it on the court . . . and it may not be created by laches or estoppel” (Morrison v Budget Rent A Car Systems, Inc. 230 AD2d 253, 260 [2d Dept 1997]).

As such, the Court’s lack of jurisdiction over this claim, as filed and served, may not be cured by amendment (Manshul Const. Corp. v State Ins. Fund, 118 AD2d 983 [3d Dept 1986]; Roberts v State of New York, 4 Misc 3d 768 [Ct Cl 2004]).

The claimants’ motion to amend the claim is denied and the defendant’s cross-motion to dismiss the claim is granted.

The Court notes that claimants may have a potential remedy available in Court of Claims Act § 10 (6) which provides that the Court, upon application and in its discretion, may permit the late filing and service of a claim “at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules.”


June 5, 2007
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:

  1. Notice of Motion, filed August 24, 2006;
  2. Affirmation of Christopher A. Bacotti, dated August 23, 2006, and annexed exhibits;
  3. Notice of Cross-Motion, filed September 5, 2006;
  4. Affirmation of Marcie K. Glasser, dated September 1, 2006, and annexed exhibits;
  5. Affirmation in Opposition of Christopher A. Bacotti, dated September 11, 2006, and annexed exhibit;
  6. Reply Affirmation of Marcie K. Glasser, dated September 14, 2006;
  7. Second Affirmation in Opposition of Christopher A. Bacotti, dated May 3, 2007;
  8. Reply Affirmation of Marcie K. Glasser to Second Affirmation in Opposition, dated May 9, 2007, and annexed exhibit.