This is a motion by Vassiliki Georgiadou (hereinafter “claimant”),
individually and as the Administrator of the Estate of Tatiana Dokas
(hereinafter “decedent”) for permission to file a late claim
pursuant to Court of Claims Act §10(6)
relating to the alleged medical malpractice of the State of New York on February
The alleged medical malpractice of the State of New York (hereinafter
“defendant”) arises from the treatment and death of decedent.
Decedent was transferred to defendant’s hospital with complaints of
abdominal pain and vomiting. According to claimant, a “code blue”
was called at 2:45 p.m. when decedent suffered cardiac arrest. Decedent was
resuscitated. Decedent later suffered two further episodes of cardiac arrest
and was pronounced dead at 5:28 p.m.
Claimant submits the motion to “deem the Notice of Intention to File a
Claim served as timely pursuant to the Court of Claims Act §10(6).”
The only remedy available according to Court of Claims Act §10(6) is to
allow a party to file a late claim. Court of Claims Act §10(8) would allow
for a timely served Notice of Intention to be converted to a claim. In
examining the remainder of claimant’s supporting papers, the Court deems
claimant’s motion to be a motion to file a late claim pursuant to Court of
Claims Act §10(6).
Defendant cross-moves this Court to dismiss the claim as jurisdictionally
. Defendant argues that the claim
fails to state the date of decedent’s death or the accrual date of the
claim. In addition, while claimant attached a copy of the autopsy to the claim,
decedent’s date of death is not listed in the autopsy.
The requirements of the Court of Claims Act are jurisdictional in nature and
must be strictly construed (Kolnacki v State of New York, 8 NY3d 277;
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.
Lepkowski v State of New York, 1 NY3d 201, 207, noted that the Court of
Claims Act "places five specific substantive conditions upon the State's waiver
of sovereign immunity by requiring the claim to specify (1) ‘the nature of
[the claim]’; (2) ‘the time when’ it arose; (3) the
‘place where’ it arose; (4) ‘the items of damage or injuries
claimed to have been sustained’; and (5) ‘the total sum
claimed.’" In Kolnacki, the Court of Appeals said,
“Lepkowski made clear that all of the requirements in section 11
(b) are ‘substantive conditions on the State's waiver of sovereign
immunity’ (1 NY3d at 207). The failure to satisfy any of the conditions is
a jurisdictional defect” (at 280-281).
In examining claimant’s papers, the claim is devoid of the date of
accrual of the claim. The claim mentions the date that decedent was admitted to
defendant’s hospital, but the date of death is not mentioned among the
boilerplate allegations of the claim. The only dates the Court observes in the
autopsy report are the date of the autopsy and the date the report was prepared.
There is no mention of the date of death. Likewise, the Notice of Intention
also fails to state the date of death.
Therefore, the Court grants defendant’s motion to dismiss the claim and
Claim No. 114885 is hereby dismissed.
In the event a notice of intention is not served or a claim filed within 90
days of the date of accrual, an application may be made for permission to file a
late claim pursuant to Court of Claims Act §10(6). The application must be
made before an action asserting a like claim against a citizen of the state
would be barred under the provisions of the CPLR.
In determining a motion seeking permission to file a late claim, the Court must
consider the following six enumerated factors listed in Court of Claims Act
§10(6): (1) whether the delay in filing was excusable; (2) whether the
State had notice of the essential facts constituting the claim; (3) whether the
State had an opportunity to investigate the circumstances underlying the claim;
(4) whether the failure to serve and file a timely claim or timely serve a
notice of intention resulted in substantial prejudice to the State; (5) whether
the movant has another available remedy; and (6) whether the claim appears to be
meritorious. The Court in the exercise of its discretion balances these
factors, and, as a general rule, the presence or absence of any one factor is
not dispositive (Bay Terrace Coop. Section IV v New York State
Employees’ Retirement System Policemen’s and Firemen’s
Retirement System, 55 NY2d 979).
The Court has reviewed the parties’ papers in support of and in
opposition to the motion.
Based on the foregoing, the Court concludes that the statutory factors favor
claimant’s application and therefore, grants permission to file a late
claim (Jomarron v State of New York, 23 AD3d 527). Movant is directed to
serve and file the proposed claim within forty-five (45) days of the filing date
of this Decision and Order in accordance with §§10, 11 and 11-a of the
Court of Claims Act.