State's Motion to Dismiss based upon Claimant's failure to meet the pleading requirements of CCA § 11(b) granted.
|Claimant short name:||RENNER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Richard Renner, 550428-119, Pro Se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Sean B. Virkler, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||December 15, 2017|
|See also (multicaptioned case)|
For the reasons set forth below, Defendant's pre-Answer Motion to Dismiss on the basis that the Court lacks jurisdiction over the Claim, as it fails to meet the pleading requirements of Court of Claims Act § 11(b), is granted. The remainder of the Motion is denied as moot.
This pro se Claim, which was filed with the Clerk of the Court on August 3, 2017, alleges that, on October 23, 2015, Claimant was in the kitchenette area of Unit 119, in Building 41, at Central New York Psychiatric Center (hereinafter, "CNYPC"), when he felt dizzy and passed out, hitting his head on the counter top and falling to the floor, dislocating and splitting open the third finger of his left hand. Claimant was transported to the St. Elizabeth Medical Center (hereinafter, "St. Elizabeth's") where it was determined that his fall was due to heart problems. Claimant was treated and had the finger re-set and the laceration stitched. He stayed at the hospital for six days before being discharged (Claim, ¶ 3). Dr. Shwe Win examined Claimant and reported possible questionable tendons rupture. It was reduced and sutured (id., ¶ 4 & Ex. B attached). Claimant was discharged from St. Elizabeth's on October 30, 2015, and sent back to CNYPC with a transfer summary stating he will get instructions from an orthopedic surgeon about his wound care and activities (id. & Ex. C attached).
Claimant alleges that imaging reports showed that there was a complete dorsal dislocation of the base of the middle phalanx in relation to the head of the proximal phalanx of the third finger with no fracture seen (Claim, ¶ 5). Claimant was then seen by Dr. David Patalino at St. Elizabeth's on October 24, 2015. The doctor treated Claimant with a dorsal extension blocking splint, and ordered follow up as an outpatient (id., ¶ 6 & Ex. E attached).
Claimant fell while at Dr. Patalino's office on November 3, 2015. He was chained at the ankles and wrists so that he could not protect himself from a fall, and the staff escorting him did not transport him in a wheelchair. Claimant re-injured his hand when he fell and was sent to St. Elizabeth's (Claim, ¶ 7).
Even though the incident causing the injury happened on October 23, 2015, Claimant asserts it did not accrue until Claimant's finger was amputated on November 2, 2016. He asserts that he served a timely Notice of Intention to File a Claim on October 11, 2016 by certified mail, return receipt requested (Claim, ¶ 8).
Pursuant to the Court of Claims Act provisions applicable to personal injury actions, Claimant was required to file and serve his Claim within 90 days from the date of accrual unless a written Notice of Intention to File a Claim was served upon the Attorney General within such time period. In that case, the Claim itself was required to be filed and served upon the Attorney General within two years after the accrual of the Claim (to the extent Claimant asserts injuries caused by negligence or intentional torts) or within one year (to the extent he asserts intentional torts of State employees) (Court of Claims Act §§ 10, 10[3-b]). In either case, Claimant was required to initiate action within 90 days of the Claim's accrual. If the Notice of Intention is defective, it does not extend Claimant's time to serve and file the Claim and, thus, the Claim filed with the office of the Clerk of the Court on January 12, 2017 and served upon Defendant on January 30, 2017 would be untimely.
Defendant moves to dismiss on the basis that Claimant: (a) failed to comply with Court of Claims Act § 11(b), in that he did not particularize the nature of the Claim and the items of damage or injuries claimed to have been sustained; and (b) did not serve either a Notice of Intention to File a Claim or a Claim within 90 days of accrual of the Claim on October 23, 2015 as required by Court of Claims Act §§ 10(3), 10(3-b) and 11(a) (Affirmation of Sean B. Virkler, Esq., Assistant Attorney General, ¶¶ 6, 12-14).
In opposition to the Motion, Claimant asserts that, even though his initial injury occurred on October 23, 2015 and the negligent acts occurred on November 3, 2015, "the Court could not properly address the [C]laim until all avenues of treatment had been tried in an effort to save [C]laimant's finger and the accrual date could not be determined until such time as the final treatment was made, which was removal of the appendage on [November 2,] 2016" (Claimant's Reply, ¶ 3[a]). He further asserts that the Notice of Intention was timely filed before the surgery took place (id.). Claimant also states that his Claim is very clear regarding the causes of action and that he provided medical records with dates to support every cause of action claimed, and the dates when such medical attention took place (id., ¶ 4).
The Court will address first Defendant's assertion that the Claim fails to meet the particularity requirements of Court of Claims Act § 11(b). Court of Claims Act § 11(b) requires that, "[t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and … the total sum claimed" (see Demonstoy v State of New York, 130 AD3d 1337 [3d Dept 2015]).
It is well established that the failure to satisfy the substantive pleading requirements of Court of Claims Act § 11(b) is a jurisdictional defect that requires dismissal of the Claim (Kolnacki v State of New York, 8 NY3d 277, 280-281 ; Lepkowski v State of New York, 1 NY3d 201, 206-207 ; Czynski v State of New York, 53 AD3d 881, 882-882 [3d Dept 2008], lv denied 11 NY3d 715 ). As stated by the Appellate Division, Third Department in Morra v State of New York (107 AD3d 1115, 1115-1116 [3d Dept 2013]):
Although "absolute exactness" is not required (Heisler v State of New York, 78 AD2d 767, 767 [4th Dept] ), the claim must " 'provide a sufficiently detailed description of the particulars of the claim to enable [defendant] to investigate and promptly ascertain the existence and extent of its liability' " (Robin BB. v State of New York, 56 AD3d 932, 932-933 [3d Dept] , quoting Sinski v State of New York, 265 AD2d 319, 319, [2d Dept] ). However, defendant is not required "to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski v State of New York [supra, at 208]). Failure to abide by these pleading requirements constitutes a jurisdictional defect mandating dismissal of the claim, even though this may be a harsh result (see Kolnacki v State of New York, [supra] at 281; Dinerman v NYS Lottery, 69 AD3d 1145, 1146 [3d Dept] , lv dismissed 15 NY3d 911 ).
The Court concludes that Claimant's Claim fails to fulfill the substantive pleading requirements of a claim as provided in Court of Claims Act §11(b). Claimant has failed to set forth any specific information regarding any allegedly negligent act on the part of any State representative in his Claim. The Claim fails to set forth the factual basis underlying Claimant's conclusory assertion that he received inadequate medical care. He has failed to describe the nature of the State's alleged negligence (Cendales v State of New York (2 AD3d 1165, 1167 [3d Dept 2003]).
As the Court finds that the Claim fails to satisfy the pleading requirements of Court of Claims Act § 11(b), Defendant's pre-Answer Motion is granted and the Claim is hereby dismissed. The remainder of the Motion is denied as moot.
December 15, 2017
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Defendant's Motion to Dismiss:
Notice of Motion, Affirmation in Support
& Exhibits attached 1
Claimant's "Reply" 2
Defendant's Reply Affirmation 3
Filed Papers: Claim