New York State Court of Claims

New York State Court of Claims

EDNA REESE v. THE STATE OF NEW YORK, #2008-036-335, Claim No. 114097, Motion Nos. M-75362, CM-75484


Case Information

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):
Claimant’s attorney:
Defendant’s attorney:
By: Joseph Tipaldo, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 6, 2008
New York

Official citation:

Appellate results:

See also (multicaptioned case)


In this medical malpractice action, claimant moves to strike four affirmative defenses which assert that the claim fails to adequately particularize the nature of incident, the State’s conduct complained of and the damages sustained. Defendant opposes the motion and cross-moves to dismiss the claim pursuant to Court of Claims Act § 11 and Uniform Rules of the Court of Claims § 206.6(b).[1] Claimant Edna Reese alleges she was admitted as a patient at Downstate Medical Center (“Downstate”) on June 4, 2007, and remained there as a patient through June 21, 2007. See Ex. A attached to the Affirmation of Martin Schiowitz dated August 16, 2007 at ¶ 3. Her claim alleges the “negligent acts occurred during this period, particularly on June 4, 2007,” in that “defendant negligently, carelessly and not in conformity with accepted medical practice, punctured claimant’s esophagus during the procedure administering anesthesia for a lumpectomy and the anesthesiologist, Jane Doe, said name being fictitious and unknown at the present time, caused a hole in her esophagus and other serious injuries.” Id. at ¶¶ 4, 8.[2] Claimant contends that “the claim adequately particularizes the claim and is in conformity of § 11 of the [Court of Claims] Act.” The court agrees. Court of Claims Act § 11(b) requires that a claim set forth “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.” In Lepkowski v State of New York (1 NY3d 201 [2003]), the Court of Appeals reiterated the long-standing principle that the purpose of the § 11(b) requirements is to “enable the State . . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances” (id., at 207, quoting Heisler v State of New York, 78 AD2d 767 [4th dept 1980]; see also Klos v State of New York, 19 AD3d 1173 [4th Dept 2005], Rodriguez v State of New York, 8 AD3d 647 [2d Dept 2004]).

While defendant asserts “the purpose of these requirements is to give the State prompt notice of an occurrence and an opportunity to investigate the facts,” defendant does not specifically assert that it is unable to investigate the claim. It is incumbent upon defendant to demonstrate that it attempted, unsuccessfully, to investigate based on the information that was provided (Cannon v State of New York, 163 Misc 2d 623 [1994]; Partridge v State of New York, Ct Cl, Patti, J., Claim No. 90710, Motion No. M-62089 [March, 2001]; Kerr v State of New York, Ct Cl, Read, P.J., Claim No. 105574, Motion No. M-65237 [October 2, 2002]; Turpin v State of New York, Ct Cl, Read, P.J., Claim No. 92485, Motion No. M-58816 [June 8, 1999]). While defendant need not go beyond the contents of a claim or notice of intention in order to obtain sufficient information to conduct its investigation, “the substantive information in a claim or notice of intention does not have to provide all of the information the State may need in order to assess its potential liability. Rather, there must be enough specific details about the time, location and nature of the claim to enable the State to easily conduct an investigation and, through such investigation, assess its risk of being found liable” (Gonzalez v State of New York, Ct Cl, Sise, P.J., April 12, 2006, UID No. 2006-028-542). In Epps v State of New York (199 AD2d 914 [1993]), the Third Department had occasion to address the degree of specificity required with respect to the statutory requirement that a claim or notice of intention state the “time when” the claim accrued. Addressing a notice of intention in a negligence claim accruing within the State correctional system, the court held: “[w]here, as here, the alleged negligence was ongoing, and assertedly involved omissions rather than affirmative acts, the recitation in the notice of the range of dates, along with the three correctional facilities where claimant was treated, is sufficiently specific to permit the State to investigate the claim.”

Here the claim alleges that the negligent acts occurred during the period between June 4, 2007 and June 21, 2007, and “particularly on June 4, 2007,” the date claimant was first admitted at Downstate. This is sufficient information to enable defendant to conduct a meaningful investigation of the claim that an anesthesiologist, whose name is presently unknown to claimant, “punctured claimant’s esophagus during the procedure administering anesthesia for a lumpectomy ... [and] caused a hole in her [claimant’s] esophagus and other serious injuries.” [3]

Accordingly, the court grants claimant’s motion to strike the first, second, fourth and ninth affirmative defenses in defendant’s answer and denies defendant’s cross-motion to dismiss the claim.

November 6, 2008
New York, New York

Judge of the Court of Claims

[1]. In connection with this motion and cross-motion, the court read and considered Claimant’s Notice of Motion, dated August 7, 2008 and Affirmation of Martin Schiowitz, dated August 7, 2008 with Exs. A and B annexed thereto (Ex. C, identified as an affidavit of merit, was not attached to the affirmation provided to the court); and Defendant’s Notice of Motion, dated August 13, 2008 and Affirmation of Joseph Tipaldo, dated August 13, 2008.
[2]. Defendant’s third affirmative defense alleges that the claimant failed to comply with the requirements of CPLR § 3012-a by failing to attach a Certificate of Merit. On July 23, 2008, claimant provided an Affidavit of Merit and defendant has withdrawn its third affirmative defense.
[3]. Although the claim alleges that “the particulars of the claimant’s damages, to date, are... Pain, Mental Suffering and Mental Anguish ... in the sum of Five Million ($5,000,000) Dollars,” defendant asserts this is insufficient as a “schedule showing detail of damages claimed” required by section 206.6(b) of the Uniform Rules of the Court of Claims. Even if defendant were entitled to more detail, which the court does not now decide, claimant’s failure to provide the detail in her claim does not warrant dismissal of the claim for lack of jurisdiction. (See Hamilton v State of New York, 11 Misc 3d 650, 653 [Ct Cl 2005]). If defendant believes that it needs more details as to the amount of claimant’s alleged damages, it can seek that information through a demand for a bill of particulars, and the court will address the issue in the event claimant does not satisfy defendant’s request.