Opinion
# 2021-032-042 Claim No. 130004 Motion No. M-95875
04-27-2021
SANDRA ALEXANDER, as ADMINISTRATOR of THE ESTATE of WILLIAM ALEXANDER v. STATE OF NEW YORK
Alan Ripka & Asssociates, LLP By: NO APPEARANCE Hon. Letitia James, Attorney General By: John Hunt, AAG
Synopsis
Claim for conscious pain and suffering is dismissed as untimely. The wrongful death cause of action is dismissed for failure to comply with Court of Claims Act § 11 (b).
Case information
| UID: | 2021-032-042 |
| Claimant(s): | SANDRA ALEXANDER, as ADMINISTRATOR of THE ESTATE of WILLIAM ALEXANDER |
| Claimant short name: | ALEXANDER |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 130004 |
| Motion number(s): | M-95875 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Alan Ripka & Asssociates, LLP By: NO APPEARANCE |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: John Hunt, AAG |
| Third-party defendant's attorney: | |
| Signature date: | April 27, 2021 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The instant claim was filed on July 21, 2017 alleging causes of action sounding in medical malpractice, lack of informed consent, negligent hiring and supervision, and wrongful death. Specifically, the claim alleges that defendant failed to timely diagnose claimant's decedent, William Alexander, with pneumonia and thus failed to provide the decedent with appropriate critical care when he presented at SUNY Downstate Medical Center (SUNY Downstate), University Hospital of Brooklyn. The claim states that the claim arose "[o]n or about December 1, 2016 through December 4, 2016" (Verified Claim ¶ 4). Defendant moves to dismiss the causes of action for conscious pain and suffering--namely, the medical malpractice, lack of informed consent, and negligent hiring and supervision causes of action--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 responded to the motion.
The Court will first address defendant's argument as to the causes of action for conscious pain and suffering. 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 cause of action for the conscious pain and suffering of William Alexander accrued, at the latest, on December 4, 2016, which appears to be the latest date that Mr. Alexander received treatment at SUNY Downstate. 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 December 4, 2016. Claimant did not serve a notice of intention to file a claim. The verified claim was filed with the Clerk of the Court on July 21, 2017--229 days after the accrual date of the claim. Thus, the causes of action for conscious pain and suffering are untimely under Court of Claims Act § 10 (3) and must be dismissed.
A cause of action for conscious pain and suffering is governed by the time limitations set forth in Court of Claims Act § 10 [3], while a cause of action for wrongful death is governed by the time limitations set forth in Court of Claims Act § 10 [2], which is discussed infra (see Pelnick v State of New York, 171 AD2d 734, 735 [2d Dept. 1991]).
Turning to claimant's cause of action for wrongful death, Court of Claims Act § 10 [2] states that
"A claim by an executor or administrator of a decedent who left him or her surviving a husband, wife or next of kin, for damages for a wrongful act, neglect or default, on the part of the state by which the decedent's death was caused, shall be filed and served upon the attorney general within ninety days after the appointment of such executor or administrator . . ." (Court of Claims Act § 10 [2]).
Claimant was appointed as the Administrator of the decedent's estate on May 31, 2017 (Verified Claim ¶ 9). Therefore, the claim, which was filed on July 21, 2017 and served on July 25, 2017, is timely as to the cause of action for wrongful death. However, defendant argues that the cause of action for wrongful death must be dismissed because it fails to comply with Court of Claims Act § 11 (b) which requires that the claim state "the time when and the place where such claim arose[.]"
Here, the claim states that the claim arose "[o]n or about December 1, 2016 through December 4, 2016" (Verified Claim ¶ 4). "The State's waiver of immunity from suits for money damages is not absolute, but rather is contingent upon a claimant's compliance with specific conditions placed on the waiver by the Legislature" (Lepkowski v State of New York, 1 NY3d 201, 206 [2003]; see Court of Claims Act § 8; Alston v State of New York, 97 NY2d 159, 163 [2001]). Moreover, "[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Matter of New York City Asbestos Litig., 24 NY3d 275, 281 [2014] [internal quotation marks and citations omitted]). The date of the decedent's death must be clearly alleged within the claim to satisfy Court of Claims Act § 11 (b) as to a cause of action for wrongful death (see Dokas v State of New York, UID No. 2008-033-304 [Ct Cl, Lack, J., Sept. 22, 2008]). A series of dates does not comply with Court of Claims Act § 11 (b) (see Matter of DeMairo v State of New York, 172 AD3d 856, 857 [2d Dept. 2019]), as defendants are not required "to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski v State of New York, 1 NY3d at 208). Thus, the Court lacks jurisdiction over the cause of action for wrongful death, as the claim fails to comply with Court of Claims Act § 11 (b).
Unpublished decisions and selected orders of the Court of Claims are available at http://www.nyscourtofclaims.state.ny.us. --------
Based upon the foregoing, defendant's motion to dismiss the claim (M-95875) is GRANTED. Claim number 130004 is DISMISSED.
April 27, 2021
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Notice of Motion, dated September 10, 2020; and Affirmation in Support of Motion, affirmed by John Hunt, AAG on September 10, 2020 with Exhibits A through D annexed thereto.