Defendant's motion for an order dismissing the claim was granted, based upon the Court's finding that claimant failed to sufficiently describe any negligent acts or omissions of State employees.
|Claimant(s):||MELISSA GIANNI and NICHOLAS GIANNI, Infant|
|Claimant short name:||GIANNI|
|Footnote (claimant name) :|
|Defendant(s):||SUNY Upstate Medical University|
|Footnote (defendant name) :|
|Judge:||NICHOLAS V. MIDEY JR.|
|Claimant's attorney:||RONALD J. PELLIGRA, ESQ.|
|Defendant's attorney:||HON. ANDREW M. CUOMO
BY: Michael R. O'Neill, Esq.,
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 21, 2010|
|See also (multicaptioned case)|
Defendant has brought this motion seeking an order dismissing the claim.
The following papers were considered by the Court in connection with this motion:
Notice of Motion to Dismiss Claim, Affirmation in Support, with Exhibits, Memorandum of Law 1,2,3
Filed Papers: Claim.
As set forth in the filed claim, it is alleged that SUNY Upstate Medical University (SUNY Upstate) "wrongfully interfered with the parent-child relationship between Nicholas Gianni, the infant, and Melissa Gianni, the parent." It is further alleged that SUNY Upstate "violated its Bill of Rights with respect to both child and mother" and "abused the legal process and maliciously prosecuted Melissa Gianni". The claim does not provide any date of accrual, but states that it "was ongoing until Melissa Gianni was acquitted on November 12, 2009".
Defendant now moves to dismiss this claim, contending that it does not sufficiently describe any alleged acts or omissions of the State, that it has not been timely filed and served, and that it does not describe any cognizable cause of action against the State. Claimants have not submitted any response to this motion.
Pursuant to Court of Claims Act § 11(b), a claim is required to state the time when and place where it arose, the nature of the claim, and the items of damage or injuries claimed to have been sustained, and the total sum claimed (Lepkowski v State of New York, 1 NY3d 201). The language of the claim must be sufficiently specific to enable the defendant to conduct an investigation and ascertain its potential liability (Heisler v State of New York, 78 AD2d 767). As stated in Heisler, "[c]onclusory 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" (id. at 767-768). In the instant claim, it is clear that claimants have failed to allege when or where any of the alleged causes of action arose. The only date provided in the claim, as stated above, is that claimant was "acquitted" on November 12, 2009. The claim fails to allege where claimant (Melissa Gianni) was "acquitted", what charges she was "acquitted" of, or what actions of State officials or employees led to any unspecified charges being brought against her.
Furthermore, based upon his review and investigation of this claim, defendant's attorney has affirmed that the last time Nicholas Gianni was a patient at SUNY Upstate was from August 7, 2007 through August 22, 2007.
Based again upon his investigation, defendant's attorney presumes that this claim arose from events which took place during an admission for Nicholas Gianni which began on January 24, 2007 and extended to March 26, 2007. Apparently, according to defendant's attorney, Child Protective Services of Onondaga County was involved by January 27, 2007. Pursuant to a Court Order issued February 8, 2007, Melissa Gianni was not allowed to have any unsupervised contact with Nicholas Gianni, and custody of Nicholas Gianni was awarded to the child's grandparents. Even though defendant's attorney has provided this information to the Court, none of this information is mentioned anywhere in the claim, and there are no indications of any negligent or improper conduct by any State employees in that matter which could possibly form the basis of any liability against the State. Claimants, by failing to respond to this motion, have shed no light on the bare allegations set forth in their claim.
As a result, even though a claimant must only show "substantial compliance" with § 11(b) (Heisler v State of New York, supra), the allegations set forth in this claim have failed to provide any indication as to the manner in which claimants were injured, nor any reasonable inference as to how the State was negligent. In short, this Court must find and conclude that claimants have failed to sufficiently describe or allege any negligent acts or omissions of State employees or officials, and have therefore failed to set forth any cognizable cause of action against the State.
Based on the foregoing, it is therefore
ORDERED, that Motion No. M-78030 is hereby GRANTED; and it is further
ORDERED, that Claim No. 118016 is hereby DISMISSED.
September 21, 2010
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims