|Claimant(s):||ALVIN GARRISON, AS ADMINISTRATOR OF THE ESTATE OF JESSICA OUTEN, DECEASED|
|Claimant short name:||GARRISON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||James J. Lack|
|Claimant's attorney:||Seidner, Rosenfeld & Guttentag, LLP
By: Larry Rosenfeld, Esq.
|Defendant's attorney:||Andrew M. Cuomo, New York State Attorney General
By: Bridget E. Farrell, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 14, 2009|
|See also (multicaptioned case)|
This is a claim of Alvin Garrison, as Administrator of the Estate of Jessica Outen, Deceased, arising from the alleged wrongful death and pain and suffering of Jessica Outen (hereinafter "decedent") between November 17 and December 7, 2008. The injuries and death are the result of the alleged medical malpractice at Stony Brook University Hospital, Stony Brook, New York (hereinafter "hospital").
A claim entitled "Notice of Claim" was originally filed on January 29, 2009 (Claim No. 116361). An answer to that claim was filed on March 4, 2009. One of the affirmative defenses advanced by defendant, is that the claim is jurisdictionally defective because claimant lacks the capacity to sue. The claimant is listed as the "Proposed Administrator". Thereafter, on March 17, 2009, Alvin Garrison (hereinafter "claimant") was appointed Administrator of decedent's estate. On March 30, 2009, claimant filed the instant claim for wrongful death and pain and suffering.
Claimant moves this Court for an order: deeming the "Notice of Claim" filed January 29, 2009 (Claim No. 116361) as a Notice of Intention; for permission to file a late claim pursuant to Court of Claims Act §10(6); to deem the claim filed March 30, 2009 as filed nunc pro tunc; and, striking the First, Second, Fifth, Sixth, Seventh and Eighth Affirmative Defenses(1) .
Defendant cross-moves for an order dismissing Claim No. 116628 and opposes claimant's motion(2) .
Court of Claims Act §10(2) states that a claim for wrongful death shall be served on the attorney general and filed with the clerk of the court within 90 days of an appointment of an executor or administrator, unless within such time claimant has served a notice of intention upon the State. No controversy exists in this matter as to the timeliness of claimant's wrongful death action. Claimant was appointed as the administrator of decedent's estate on March 17, 2009. The claim was served and filed March 30, 2009.
A claim for conscious pain and suffering is untimely unless it is served within 90 days of the date of accrual (Court of Claims Act §10; Bourguignon v City of New York, 157 AD2d 644). The Court does not have jurisdiction over Claim No. 116361, as claimant did not have the authority to bring the action. The instant claim was filed 113 days after decedent's death. The claim for conscious pain and suffering is untimely. The Court will grant claimant's motion to deem Claim No. 116361 a Notice of Intention.
As the Court will now treat the prior claim as a Notice of Intention, claimant's motion for permission to file a late claim is unnecessary and thus denied. The pain and suffering allegations in the instant claim are timely.
Defendant cross-moves to dismiss the claim because it is jurisdictionally defective. Defendant argues "[t]he State was not provided with notice as to the nature of any 'severe' injury referred to in the claim."
The claim alleges defendant failed to properly diagnose and treat decedent for a postpartum hemorrhage resulting in pain and suffering and, ultimately death.
The requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Lurie v State of New York, 73 AD2d 1006, aff'd 52 NY2d 849). The purpose of these requirements is to give prompt notice of an occurrence and an opportunity to investigate (Schwartzberg v State of New York, 121 Misc 2d 1095, aff'd 98 AD2d 902). Pursuant to Court of Claims Act §11(b), a claim must include the time when and place where the claim arose, the nature of the claim, and the items of damage or injuries sustained. If the original document does not include all that is essential to constitute a claim, the document is jurisdictionally defective (Grande v State of New York, 160 Misc 2d 383). The claim is subject to dismissal and "a lack of prejudice to the State is an immaterial factor" (Byrne v State of New York, 104 AD2d 782, 784, lv denied 64 NY2d 607).
It is well settled that absolute exactness is not required, only a statement with sufficient definiteness to give the defendant an opportunity to investigate the claim (Heisler v State of New York, 78 AD2d 767). "The statement must be specific enough so as not to mislead, deceive or prejudice the rights of the State. . . Conclusory or general allegations of negligence that fail to adduce the manner in which the claimant was injured and how the State was negligent do not meet its requirements" (Heisler at 767 - 768).
Defendant cites this Court's decision in Fardella v State of New York, (Claim No. 108433, Motion No. M-67729 dated March 30, 2004) in support of its argument. However, in Fardella, the Court granted dismissal of a claim that never stated how claimant was injured in a lengthy claim. The claim stated nothing more than boilerplate language and gave defendant no indication of what happened.
In the instant claim, claimant states there were problems with treatment and diagnosis of a postpartum hemorrhage. In addition, defendant has decedent's date of admission. It is clear what defendant needs to examine in its medical charts. The Court finds no merit to defendant's argument that claimant does not allege a severe injury. The Court will accept decedent's death as severe. Defendant's motion to dismiss is denied.
In denying defendant's motion, the Court grants claimant's motion to dismiss defendant's First, Second, Sixth and Eighth Affirmative Defenses. The Fifth Affirmative Defense will stand, as claimant has yet to prove decedent's death was caused by someone under defendant's control. Claimant is ordered to provide a CPLR 3012-a Certificate of Merit within forty-five (45) days of the filing date of this Decision and Order.
Accordingly, the Court grants claimant's motion to treat Claim No. 116361 as a Notice of Intention and deems the instant claim, Claim No. 116628, as timely nunc pro tunc; denies claimant's motion for a late claim; grants claimant's motion to dismiss defendant's First, Second, Sixth and Eighth Affirmative Defenses; denies claimant's motion to dismiss defendant's Fifth and Seventh Affirmative Defenses; denies defendant's motion to dismiss Claim No. 116628; and orders claimant to provide a CPLR 3012-a Certificate of Merit within forty-five (45) days of the filing date of this Decision and Order. The Court further directs that any discovery documents previously filed under Claim No. 116361 to be filed under Claim No. 116628.
December 14, 2009
Hauppauge, New York
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 July 2, 2009 and filed July 8, 2009; Affirmation in Support of Larry Rosenfeld, Esq. with annexed Exhibits A-H dated July 2, 2009 and filed July 8, 2009; Supplemental Affirmation in Support of Larry Rosenfeld, Esq. with annexed Exhibit I dated July 7, 2009 and filed July 13, 2009.
2. The following papers were read and considered on defendant's cross-motion: Notice of Cross-Motion dated July 10, 2009 and filed July 13, 2009; Affirmation of Bridget E. Farrell, Esq. with annexed Exhibits A-D dated July 10, 2009 and filed July 13, 2009; Affirmation in Opposition and Reply with annexed Exhibits A-B dated July 28, 2009 and filed August 3, 2009; Affirmation in Reply on the Cross-Motion dated August 3, 2009 and filed August 5, 2009.