|Claimant short name:||THOMAS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended to reflect that the sole proper defendant is the State of New York.|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Finkin, Finkin & Ferraro
By: Bob M. Finkin, Esq.
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: Albert E. Masry, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||June 2, 2009|
|See also (multicaptioned case)|
Defendant moves to dismiss the claim of Crystal Thomas on the ground that it is jurisdictionally defective because it "fail[s] to particularize the nature of the claim and the manner in which it arose." See ¶2 of the September 17, 2008 affirmation of Albert E. Masry. Ms. Thomas's underlying claim arises from alleged medical malpractice at SUNY Downstate Medical Center in Brooklyn.
Section 11.b of the Court of Claims Act requires that a medical malpractice claim 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 . . ." In Kolnacki v State of New York, 8 NY3d 277 (2007), the Court of Appeals held that the failure to state any of the foregoing items renders a claim jurisdictionally defective.
In this motion, defendant essentially argues that Thomas has failed to adequately set forth the nature of her claim, which states that it is "[f]or medical malpractice causing [claimant] to sustain serious injury to her pancreas, gall bladder and other vital organs within the digestive tract."
I find that in the instant case, Thomas has stated the nature of her claim with "sufficient definiteness." Heisler v State of New York, 78 AD2d 767, 433 NYS2d 646, 648 (4th Dept 1980). See, e.g., Acciarello v State of New York, Ct Cl, June 28, 2006 (unreported, claim no. 111038, motion nos. M-70958 and CM-71059, UID #2006-016-016, Marin, J.); Browne v State of New York, 16 Misc 3d 902, 839 NYS2d 907 (Ct Cl 2007).
Accordingly, having reviewed the submissions(2) , IT IS ORDERED that motion no. M-75545 be denied.
June 2, 2009
New York, New York
Alan C. Marin
Judge of the Court of Claims
2. The following were reviewed: defendant's notice of motion with affirmation in support and exhibits A through D; claimant's affirmation in opposition; and defendant's reply affirmation with exhibit A.