|Claimant(s):||ORAL MARK BLANCHARD, AS ADMINISTRATOR OF THE ESTATE OF MARK BLANCHARD AND ORAL MARK BLANCHARD, INDIVIDUALLY|
|Claimant short name:||BLANCHARD|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||James J. Lack|
|Claimant's attorney:||The Law Offices of Richard Wright
By: Richard Wright, Esq. and
Halina Radchenko, Esq.
|Defendant's attorney:||Andrew M. Cuomo, New York State Attorney General
By: Mary Y.J. Kim, Assistant Attorney General and
Alisa R. Lebensohn, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 21, 2010|
|See also (multicaptioned case)|
This is a claim by Oral Mark Blanchard, As the Administrator of the Estate of Mark Blanchard and Oral Mark Blanchard, Individually (hereinafter "claimant") for wrongful death due to the alleged medical malpractice of the defendant, the State of New York (hereinafter "State"). The claim is related to treatment received by Mark Blanchard (hereinafter "decedent") between September 2007 and May 1, 2008, the day decedent died. Decedent was treated at SUNY Downstate Hospital, Brooklyn, New York.
Claimant moves to amend the claim to include a cause of action for conscious pain and suffering and to particularize his claim for medical malpractice. In the alternative, claimant asks this Court for permission to file a late claim pursuant to Court of Claims Act §10(6)(1) .
The State now cross-moves to dismiss the claim for claimant's failure to particularize the claim pursuant to Court of Claims Act §11(b)(2) .
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, and 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).
In the present case, claimant resorted to boilerplate language to allege the claim in the original claim and in the first amended claim. Claimant now seeks to cure this defect. In support of his motion to amend, claimant attaches the proposed amended claim. Claimant relies on CPLR 3025 (b) which states:
A party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances.
Claimant further argues no prejudice inures to the defendant.
As the court stated in Grande,
[t]he defendant is not required to go beyond a claim or notice of intention in order to investigate an occurrence or ascertain information which should be provided pursuant to Court of Claims Act§ 11 (Maurer v State of New York, M-46911, Hanifin, J., Apr. 6, 1993). Further, the lack of prejudice is not a factor with regard to determining jurisdictional questions in the Court of Claims ( Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607).
(Grande at 386).
The Court grants defendant's cross motion to dismiss.
The appropriate remedy for claimant is to seek leave to file a late claim pursuant to Court of Claims Act §10(6).
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 to file a late claim.
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). Claimant is directed to serve and file the proposed claim within forty-five (45) days of the filing date of this Decision and Order in accordance with §§10, 11 and 11-a of the Court of Claims Act.
Claimant's motion to amend is denied and defendant's motion to dismiss Claim No. 116396 is granted and the Clerk is directed to close the file.
June 21, 2010
Hauppauge, New York
James J. Lack
Judge of the Court of Claims
1. The following papers have been read and considered on claimant's motion: Notice of Motion dated September 24, 2009 and filed October 2, 2009; Affirmation in Support of Richard Wright, Esq. with annexed Exhibits A-O dated September 24, 2009 and filed October 2, 2009.
2. The following papers have been read and considered on defendant's cross-motion: Notice of Cross-Motion to Dismiss dated November 16, 2009 and filed November 18, 2009; Affirmation in Support of Cross-Motion to Dismiss and in Opposition to Claimant's Motion of Mary Y.J. Kim, Esq. with annexed Exhibits A-E dated November 17, 2009 and filed November 18, 2009; Affirmation of Claimants in Reply to Defendant's Affirmation in Opposition to Claimant's Motion and in Opposition to Defendant's Cross Motion to Dismiss of Halina Radchenko, Esq. with annexed Exhibits A-I dated January 6, 2010 and filed January 11, 2010; Defendant's Reply Affirmation of Alisa R. Lebensohn, Esq. dated January 25, 2010 and filed January 27, 2010.