New York State Court of Claims

New York State Court of Claims

GALLO v. THE STATE OF NEW YORK, #2009-033-350, Claim No. 115076, Motion Nos. M-76630, CM-76678


Synopsis



Case Information

UID:
2009-033-350
Claimant(s):
GIULIANO GALLO and MARY ALEXANDRA GALLO
Claimant short name:
GALLO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115076
Motion number(s):
M-76630
Cross-motion number(s):
CM-76678
Judge:
James J. Lack
Claimant’s attorney:
Anthony J. Montiglio, Esq.
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney GeneralBy: Bridget E. Farrell, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 21, 2009
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a motion by Giuliano Gallo (hereinafter “claimant”) 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 7, 2008, at Stony Brook University Hospital, Stony Brook, New York. The claim of Mary Alexandra Gallo is derivative in nature.


The alleged medical malpractice of the State of New York (hereinafter “defendant”) arises from the treatment of claimant. Claimant alleges he received a lumbar puncture in defendant’s emergency room without informed consent.

Claimant submits the motion to file a claim pursuant to Court of Claims Act §10(6). Claimant previously served and filed a claim (Claim No. 115076). However, defendant has interposed a jurisdictional defense which states the claim is jurisdictionally defective in that in lacks sufficient particularization.

Defendant cross-moves this Court to dismiss the claim as jurisdictionally defective.[2] Defendant argues the claim fails to sufficiently particularize facts to give defendant an opportunity to investigate.

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 upon 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 specific facts as to what occurred to claimant during his stay at defendant’s hospital so as to give defendant notice as to the facts of this matter.

Therefore, the Court grants defendant’s motion and Claim No. 115076 is hereby dismissed.

In the event a claim or notice of intention is not 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 serve a timely 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). Claimants are directed to serve and file the proposed claim within forty-five (45) days of the filing of this Decision and Order in accordance with §§10, 11 and 11-a of the Court of Claims Act.


September 21, 2009
Hauppauge, New York

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




[1].The following papers have been read and considered on claimants’ motion: Notice of Motion dated April 20, 2009 and filed on April 27, 2009; Affirmation of Anthony J. Montiglio, Esq. with annexed Exhibits A-E dated April 20, 2009 and filed April 27, 2009.
[2].The following papers have been read and considered on defendant’s cross-motion: Notice of Cross-Motion dated May 11, 2009 and filed May 12, 2009; Affirmation in Opposition to the Motion and in Support of the Cross-Motion of Bridget E. Farrell, Esq. with annexed Exhibits A-F dated May 11, 2009 and filed May 12, 2009; Affirmation in Opposition to Cross-Motion and In Reply to Affirmation in Opposition to Motion in Chief of Anthony J. Montiglio, Esq. with annexed Exhibit A dated June 16, 2009 and received June 19, 2009.