New York State Court of Claims

New York State Court of Claims
RAMPERSAD v. THE STATE OF NEW YORK, # 2021-059-074, Claim No. 132482, Motion No. M-96917

Synopsis

Case information

UID: 2021-059-074
Claimant(s): SHEILA RAMPERSAD, AS THE ADMINISTRATOR OF THE ESTATE OF DOODNATH RAMPERSAD AND SHEILA RAMPERSAD INDIVIDUALLY
Claimant short name: RAMPERSAD
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 132482
Motion number(s): M-96917
Cross-motion number(s):
Judge: MAUREEN T. LICCIONE
Claimant's attorney: No appearance
Defendant's attorney: HON. LETITIA JAMES, ATTORNEY GENERAL
By: John Hunt, Assistant Attorney General
Third-party defendant's attorney:
Signature date: December 8, 2021
City: Hauppauge
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

The instant claim was filed on January 2, 2019 alleging causes of action against the State of New York (Defendant) sounding in medical malpractice, lack of informed consent, loss of consortium, and wrongful death. Specifically, the claim alleges that defendant, through its agents, servants and/or employees, improperly performed a gall bladder removal on the decedent, Doodnath Rampersad, resulting in the decedent's wrongful death (Verified Claim 3-4). The verified claim states that the claim arose "from November 1, 2017, continuing to, through, and including February 1, 2018" (id. 2 [a]). Defendant moves to dismiss the causes of action for medical malpractice, lack of informed consent, and loss of consortium on the ground that these causes of action are untimely under Court of Claims Act 10 (3). Defendant also moves to dismiss the wrongful death cause of action on the ground that the claim fails to comply with Court of Claims Act 11 (b) because the claim fails to state the decedent's date of death. Claimant has not submitted opposition to the motion.

The Court will first address Defendant's argument as to the causes of action for medical malpractice, lack of informed consent, and loss of consortium. Court of Claims Act 10 (3) provides that a claim to recover damages for personal injuries caused by the negligence of a state employee must be filed within 90 days after the accrual of such claim, unless the claimant within such time serves a written notice of intention to file a claim, in which event the claim must be filed within two years after the accrual of the claim (Kiesow v State of New York, 161 AD3d 1060, 1061 [2d Dept 2018] [citation omitted]). The causes of action for medical malpractice, lack of informed consent, and loss of consortium accrued, at the latest, on February 1, 2018. Thus, Court of Claims Act 10 (3) required that a claim be filed and served or a notice of intention to file a claim be served upon the Attorney General within 90 days after February 1, 2018. Claimant did not serve a notice of intention to file a claim (Affirmation in Support, 5). The verified claim was filed with the Clerk of the Court on January 2, 2019--335 days after the latest accrual date of the claim. Thus, the causes of action for medical malpractice, lack of informed consent, and loss of consortium are untimely under Court of Claims Act 10 (3) and must be dismissed.

Turning then to the wrongful death claim, the Court issued an Order filed February 4, 2021, following a conference with the parties, reflecting Claimant's determination to withdraw the claims for wrongful death and pecuniary loss (NYSCEF Doc. No. 5). Therefore, the Court need not reach Defendant's motion to the extent it seeks dismissal of the wrongful death cause of action as this cause of action has been withdrawn.

Based upon the foregoing, defendant's motion to dismiss the claim (M-96917) is GRANTED. Claim number 132482 is DISMISSED.

December 8, 2021

Hauppauge, New York

MAUREEN T. LICCIONE

Judge of the Court of Claims