|Claimant(s):||LOUIS PRATS AND AMY BIONDI AS POWER OF ATTORNEY OF LOUIS PRATS|
|Claimant short name:||PRATS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||James J. Lack|
|Claimant's attorney:||Cellino & Barnes, P.C.
By: Christian R. Oliver, Esq.
|Defendant's attorney:||Andrew M. Cuomo, New York State Attorney General
By: Joseph Tipaldo, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 16, 2010|
|See also (multicaptioned case)|
This is a claim by Louis Prats and Amy Biondi as Power of Attorney of Louis Prats (hereinafter "claimant") for injuries resulting from the alleged negligence and medical malpractice of the State of New York (hereinafter "State"). The alleged negligence and medical malpractice occurred on July 10, 2008, at the Long Island Veterans Home, Stony Brook, New York.
On or about October 7, 2008, claimant served a Notice of Intention upon the State. On or about May 7, 2009, the claim was served upon the Attorney General's Office. Claimant filed his claim with the Clerk of the Court on May 11, 2009. Issue was joined when the defendant served its answer on June 11, 2009. Included within defendant's answer are ten affirmative defenses. By motion, claimant moves to dismiss the First, Second and Third Affirmative Defenses. In the alternative, claimant seeks permission to file a late claim pursuant to Court of Claims Act §10(6)(1) .
Defendant opposes claimant's motion and submits a cross-motion to dismiss the claim for failure to comply with §11 of the Court of Claims Act(2) .
The First Affirmative Defense alleges the claim fails to comply with Court of Claims Act §11 by failing to include sufficient particularization as to defendant's conduct in regard to the incident. The Second Affirmative Defense alleges the claim fails to comply with Court of Claims Act §11 by failing to include sufficient particularization of the nature of the incident and the manner in which it occurred. The Third Affirmative Defense asserts Amy Biondi lacks legal standing or authority to sue.
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 the State prompt notice of an occurrence and an opportunity to investigate the facts and prepare a defense. There must be sufficient detail to enable the State to investigate (Schwartzberg v State of New York, 121 Misc 2d 1095, aff'd 98 AD2d 902). Pursuant to the Court of Claims Act, a claim must include the time when and place where the claim arose, the nature of the claim, 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) and the claim is subject to dismissal even if there is no prejudice to defendant (Byrne v State of New York, 104 AD2d 782 lv denied 64 NY2d 607).
After examining the claim, the Court finds claimant has sufficiently particularized the nature of the incident and defendant's conduct. The claim alleges claimant was a patient at the Long Island Veterans Home and while smoking, a cigarette fell into his lap. Claimant alleges the incident occurred due to defendant's lack of supervision and negligence. Defendant, in its opposition, states in a conclusory fashion that the description is inadequate. There is no support to show that defendant was unable to investigate this matter because of claimant's description. The Court grants claimant's motion to strike the First and Second Affirmative Defenses.
The Court finds claimant has sufficiently identified Ms. Biondi as the same individual to whom the power of attorney was granted. The Court grants claimant's motion to strike the Third Affirmative Defense .
Based on the foregoing, the Court grants claimant's motion to strike defendant's First, Second and Third Affirmative Defenses. The Court denies defendant's cross-motion to dismiss the claim.
April 16, 2010
Hauppauge, New York
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 December 3, 2009 and filed December 7, 2009; Affirmation of Christian R. Oliver, Esq. with annexed Exhibits A-L dated December 3, 2009 and filed December 7, 2009.
2. The following papers have been read and considered on defendant's cross-motion: Cross-Motion to Dismiss dated December 21, 2009 and filed December 29, 2009; Affirmation of Joseph Tipaldo, Esq. dated December 21, 2009 and filed December 29, 2009; Reply Affirmation and Affirmation in Opposition to Defendant's Cross-Motion to Dismiss of Christian R. Oliver, Esq. dated January 6, 2009 [sic] and filed January 6, 2010 and January 11, 2010.