New York State Court of Claims

New York State Court of Claims

DOKAS v. THE STATE OF NEW YORK, #2008-033-304, Claim No. 114885, Motion Nos. M-74590, CM-74760


Synopsis



Case Information

UID:
2008-033-304
Claimant(s):
TATIANA DOKAS, deceased, by VASSILIKI GEORGIADOU, as Administrator of her Estate, and VASSILIKI GEORGIADOU, Individually
Claimant short name:
DOKAS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114885
Motion number(s):
M-74590
Cross-motion number(s):
CM-74760
Judge:
James J. Lack
Claimant’s attorney:
Salenger, Sack, Schwartz & KimmelBy: Carolyn M. Caccese, Esq.
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney GeneralBy: Mary Y.J. Kim, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 22, 2008
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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)[1], relating to the alleged medical malpractice of the State of New York on February 3, 2007.


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 defective[2]. 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.


September 22, 2008
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1].The following papers were read and considered on claimant’s motion: Notice of Motion dated February 12, 2008 and filed February 25, 2008; Affirmation in Support of Carolyn M. Caccese, Esq. with annexed Exhibits A-E dated February 12, 2008 and filed February 25, 2008.
[2].The following papers have been read and considered on defendant’s cross-motion: Notice of Cross-Motion to Dismiss dated April 2, 2008 and filed April 4, 2008; Affirmation in Support of Cross-Motion and in Opposition to Claimant’s Motion of Mary Y.J. Kim, Esq. with annexed Exhibit A dated April 2, 2008 and filed April 4, 2008; Affirmation in Opposition of Carolyn M. Caccese, Esq. dated April 14, 2008 and filed April 21, 2008; Reply Affirmation in Further Support of Cross-Motion of Mary Y.J. Kim, Esq. dated May 5, 2008 and filed May 7, 2008.