New York State Court of Claims

New York State Court of Claims

ANWAR v. THE STATE OF NEW YORK, #2008-016-050, Claim No. 114357, Motion Nos. M-74371, CM-74545


Case Information

Estate of MUHAMMAD ANWAR, Deceased, by SAIMA NASIR, as Administratrix and QALSOOM AKHTAR, individually as wife of the deceased
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):
Alan C. Marin
Claimant’s attorney:
Salenger, Sack, Schwartz & KimmelBy: Carolyn M. Caccese, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Mary Y.J. Kim, Esq., AAG
Third-party defendant’s attorney:

Signature date:
September 18, 2008
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants move for an order striking defendant’s first through fourth affirmative defenses and defendant cross-moves for an order dismissing the claim, which alleges negligence and medical malpractice in connection with the treatment of Muhammad Anwar at SUNY Downstate Medical Center. It is alleged that Mr. Anwar underwent cardio-thoracic testing and surgery on September 26 and 27, 2001, lapsed into a coma on October 2, 2001 and thereafter died on May 25, 2003.

A previous claim arising from the same set of facts (claim no. 108813) was dismissed in a September 20, 2005 Decision and Order for the failure to include a total sum claimed as was then required by §11.b of the Court of Claims Act (the “Act”). Thereafter, the Act was amended to provide that a total sum claimed need not be stated in claims for personal injury, medical, dental or podiatric malpractice or wrongful death (see Chapter 606 of the Laws of 2007 and Chapter 64 of the Laws of 2008). It is undisputed by the parties that such legislation applies to the instant claim.[1]

What is at issue on these motions is that the newly filed claim varies from the previously dismissed claim as set forth more fully below. Defendant characterizes the variations as “additional allegations,” and argues that as they were set forth for the first time in the new claim, such is untimely for the purposes of §§10 and 11 of the Act (see defendant’s first through third affirmative defenses). Defendant also maintains that the claim of Muhammad Anwar’s wife, Qalsoom Akhtar, should be dismissed because she lacks standing (see defendant’s fourth affirmative defense) and because she fails to state a cause of action. A comparison of the previously filed claim with the new claim shows two differences. First, claimants have identified additional named individuals who treated Mr. Anwar at the hospital. Second, claimants have alleged additional specific departures from good and accepted medical practice. The new claim is thus more specific than the previous one, but there is no change in the theory of liability or in the general essence of the claim. Defendant has advanced no precedent to support a dismissal of the new claim.

As to Qalsoom Akhtar’s claim, defendant states that she lacks standing to sue, but does not further explain. Defendant also maintains that a claim for loss of services is not viable within a wrongful death action. As claimants point out, there is also a cause of action for pain and suffering; it is alleged that after Anwar entered the hospital, he did not die until more than a year and a half later. Finally, to the extent defendant alleges that Ms. Akhtar’s derivative claim is insufficiently particular, it has provided no applicable authority.

In view of the foregoing, having reviewed the submissions[2], IT IS ORDERED that motion no. M-74371 be granted and defendant’s first through fourth affirmative defenses shall be deemed stricken. It is further ordered that cross-motion no. CM-74545 be denied.

September 18, 2008
New York, New York

Judge of the Court of Claims

  1. [1]Chapter 64 of the Laws of 2008 provides that the amendment to the Act applies, inter alia, to any claim that was dismissed for failure to state a total sum claimed, provided that such dismissal was being appealed or could be appealed as of August 15, 2007. Claimants appealed the dismissal of claim no. 108813 to the Appellate Division, which affirmed by decision dated June 19, 2007. Claimants then moved for reargument and for leave to appeal to the Court of Appeals. As of August 15, 2007, such motion was still pending.
  2. [2]The following were reviewed: claimants’ notice of motion with affirmation in support and exhibits A through I; defendant’s notice of cross-motion with affirmation in support and exhibits A through D; claimants’ “Affirmation in Opposition to Cross Motion/Reply” and exhibits A and B; defendant’s “Reply Affirmation in Further Support of Motion to Dismiss”; and defendant’s letter dated July 16, 2008.