Opinion
# 2015-045-004 Claim No. None Motion No. M-85727
02-18-2015
JOAN JACOBSEN and ALLAN JACOBSEN v. THE STATE OF NEW YORK
Law Firm of Christopher S. Olson, Esq. By: Doreen J. Shindel, Esq. of Counsel Hon. Eric T. Schneiderman, Attorney General By: Joseph Tipaldo, Assistant Attorney General
Synopsis
Claimant seeks to file a new action pursuant to CPLR 205-a. Claimant also seeks to have the notice of intention converted into a claim.
Case information
| UID: | 2015-045-004 |
| Claimant(s): | JOAN JACOBSEN and ALLAN JACOBSEN |
| Claimant short name: | JACOBSEN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended, sua sponte, to reflect the State of New York as the proper defendant. |
|---|---|
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | None |
| Motion number(s): | M-85727 |
| Cross-motion number(s): | |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | Law Firm of Christopher S. Olson, Esq. By: Doreen J. Shindel, Esq. of Counsel |
| Defendant's attorney: | Hon. Eric T. Schneiderman, Attorney General By: Joseph Tipaldo, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 18, 2015 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered by the Court on this motion: Claimants' Notice of Motion, Claimants' Affirmation in Support with annexed Exhibits 1-5, Defendant's Affirmation in Opposition and Claimants' Reply Affirmation with annexed Exhibit 1.
Claimants, Joan Jacobsen and Allan Jacobsen, have brought this motion seeking an order converting the notice of intention to file a claim into a claim. Claimants also seek an order permitting them to file a claim pursuant to CPLR § 205 (a).
The Court of Claims Act does not provide for the filing of a "Notice of Claim."
Claimants alleged claims of medical malpractice and negligence against defendant, the State of New York, in their notice of intention. Specifically, claimants state that on November 17, 2011, Joan Jacobsen was a patient at Stony Brook University Hospital. They allege that Mrs. Jacobsen suffered injuries when she fell off an operating room table during a surgical procedure at the hospital. Claimants contend that Mrs. Jacobsen was, inter alia, improperly secured on the operating room table which precipitated her fall. Claimants allege that Mrs. Jacobsen suffered severe injuries as a result of the fall including a torn kidney.
Court of Claims Act § 10(3) provides that:
"[a] claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim."
The notice of intention was verified by claimants and was personally served upon the Office of the New York State Attorney General on December 30, 2011. Claimants filed a summons and verified complaint against Valmore Suprenant, M.D., Nurse B. Shea and the State University of New York at Stony Brook in the Supreme Court, Suffolk County on May 15, 2014. Attorneys for defendant, State University of New York at Stony Brook, moved for dismissal in Supreme Court on June 19, 2014. By order dated August 8, 2014, Honorable Joseph A. Santorelli dismissed the case against the State University of New York at Stony Brook due to a lack of subject matter jurisdiction over the defendant.
Having failed to timely file a claim in the Court of Claims, claimants now seek an order converting their notice of intention into a claim pursuant to Court of Claims Act §§ 10 (8) (a) and (b).
Court of Claims Act §§ 10 (8) (a) provides that:
"[a] claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The court shall not grant such application unless: it is made upon motion before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant."
Court of Claims Act §§ 10 (8) (b) provides that:
"[a]n application by a claimant whose time to commence an action against a citizen of the state would be extended or tolled by reason of any of the provisions contained in article two of the civil practice law and rules shall be considered timely if the application has been made prior to the expiration of the limitation period for filing as extended by reason of the provisions of article two of the civil practice law and rules."
A notice of intention must satisfy the requirements of Court of Claims Act § 11 (b) before it may be converted into a claim.
Court of Claims Act § 11 (b) provides 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, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed. A claim for the appropriation by the state of lands, or any right, title or interest in or to lands shall include an inventory or itemized statement of fixtures, if any, for which compensation is claimed. The notice of intention to file a claim shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated. The claim and notice of intention to file a claim shall be verified in the same manner as a complaint in an action in the supreme court."
The Court finds that the notice of intention served by claimants in this matter complies with the requirements of Court of Claims Act § 11 (b) in that it states the date of the occurrence, the place where the claim arose, the nature of the claim and the type of injury sustained by Mrs. Jacobsen. Defendant argues that the notice of intention is inadequate since it was not accompanied by a certificate of merit as required by CPLR § 3012-a, however, the appropriate remedy for such an omission is not dismissal at this stage but a supplemental submission of a certificate of merit (Madkins v State of New York, 82 AD3d 1174 [2d Dept 2011]; Bowles v State of New York, 208 AD2d 440 [1st Dept 1994]).
Claimants filed the present motion on September 26, 2014, approximately 2 years and 10 months after the claim accrued. Thus, the motion was presented outside the 2½ year statute of limitations period for medical malpractice actions but within the 3 year statute of limitations period for negligence actions (see CPLR §§ 214 and 214-a).
As a result, in regard to the allegations of negligence the Court finds it appropriate to convert the notice of intention into a claim pursuant to Court of Claims Act § 10 (8) (a). However, in regard to the allegations of medical malpractice claimants are relying on Court of Claims Act § 10 (8) (b) and CPLR § 205 (a).
CPLR § 205 (a) provides in pertinent part that:
"[i]f an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or, if the plaintiff dies, and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period."
It is well settled that CPLR § 205 (a) does not obviate the necessity for complying with the conditions precedent to suit contained within Court of Claims Act § 10 (Campbell v City of New York, 4 NY3d 200 [2005]; Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp., 93 NY2d 375 [1999]). In the context of Court of Claims Act § 10 (8) this requirement was satisfied by claimants' timely service of a notice of intention which satisfied the requirements of Court of Claims Act § 11 upon the Office of the Attorney General (Morris v State of New York, 27 AD3d 282 [1st Dept 2006]).
CPLR § 205 (a) requires that the first action be timely commenced such that the new action would have been timely commenced at the time of commencement of the prior action. Here claimants' first action was timely commenced in Supreme Court and given the extension provided for in Court of Claims Act §§ 10 (8) (a) and (b) would have been timely commenced at the time of commencement of the prior action (Morris v State of New York, 27 AD3d 282 [1st Dept 2006]). The first action was dismissed based on a lack of subject matter jurisdiction. The new action was commenced by the timely service of the notice of intention plus the filing of this motion within six months of the termination of the first action. Thus, given the circumstances presented in this case, the Court finds it appropriate to convert the entire notice of intention, including the allegations of medical malpractice, into a claim.
Therefore, for the foregoing reasons, claimants' motion to convert the notice of intention into a claim is granted. The Clerk of the Court is hereby directed to assign a claim number to this claim and to treat claimants' notice of intention, attached to this motion, as being filed as of the date it was served on defendant. Claimants are also hereby directed to file the requisite number of copies of the notice of intention, as served, with the Clerk's Office. Further, claimants are directed to file and serve a certificate of merit as required by CPLR § 3012-a, and tender the requisite filing fee under Court of Claims Act § 11-a within 30 days of the date this Decision and Order is filed. Defendant shall file and serve its answer within 40 days of the date this Decision and Order is filed.
February 18, 2015
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims