Opinion
# 2018-045-041 Claim No. 124884 Motion No. M-92328
10-17-2018
MARGARET PANAGIOTIDIS, individually and as administratrix of the Estate of APOSTOLOS PANAGIOTIDIS, Deceased, STILIANOS PANAGIOTIDIS, MARYELLEN KEFALOGIANIS, and DIMITRIOS PANAGIOTIDIS, as heirs and distributes of the deceased v. THE STATE OF NEW YORK
Sipsas, P.C. By: Ioannis (John) P. Sipsas, Esq. Hon. Barbara D. Underwood, Attorney General By: Mary Beth T. Ott, Assistant Attorney General
Synopsis
Motion to dismiss untimely malpractice claim. Any interested party including proposed administrator can serve notice of intention to file claim.
Case information
| UID: | 2018-045-041 |
| Claimant(s): | MARGARET PANAGIOTIDIS, individually and as administratrix of the Estate of APOSTOLOS PANAGIOTIDIS, Deceased, STILIANOS PANAGIOTIDIS, MARYELLEN KEFALOGIANIS, and DIMITRIOS PANAGIOTIDIS, as heirs and distributes of the deceased |
| Claimant short name: | PANAGIOTIDIS |
| 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 only properly named defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124884 |
| Motion number(s): | M-92328 |
| Cross-motion number(s): | |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | Sipsas, P.C. By: Ioannis (John) P. Sipsas, Esq. |
| Defendant's attorney: | Hon. Barbara D. Underwood, Attorney General By: Mary Beth T. Ott, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 17, 2018 |
| 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: Defendant's Notice of Motion; Defendant's Affirmation in Support with annexed Exhibits A-H; Claimants' Affirmation in Opposition with annexed Exhibits 1-6; Defendant's Reply with annexed Exhibit A.
Defendant, the State of New York, has brought this motion seeking an order pursuant to CPLR 3211: 1) dismissing all causes of action seeking damages for decedent's alleged conscious pain and suffering arising from care and treatment rendered at Stony Brook University Hospital and Charles K. Post Addiction Treatment Center and any cause of action for medical malpractice/negligence, negligent management or supervision of personnel and all individual causes of action asserted on behalf of Margaret Panagiotidis, Stilianos Panagiotidis, Maryellen Kefalogianis, and Dimitrios Panagiotidis, pursuant to Court of Claims Act §§ 10 (3) and 11 (b), for lack of subject matter jurisdiction; 2) dismissing the claim for lacking sufficient detail to set forth a valid cause of action and failing to plead facts relied upon and assert a legal theory upon which the State is liable for decedent's wrongful death, pursuant to the Court of Claims Act § 11 (b), for lack of subject matter jurisdiction; 3) finding the notice(s) of intention to file a claim deficient and insufficient to extend claimants' time to submit a claim against the State, pursuant to the Court of Claims Act § 11 (b); 4) dismissing the claim, in its entirety, as untimely pursuant to Court of Claims Act § 10 (2); 5) dismissing all causes of action asserted on behalf of Stilianos Panagiotidis and Maryellen Kefalogianis for lack of standing pursuant to EPTL § 4-1.1 and § 5-4, 4; 6) amending the caption to reflect Margaret Panagiotidis, as Administrator of the Estate of Apostolos Panagiotidis, Deceased, as the only proper Claimant; 7) dismissing all claims asserted against any entity/person, other than the State of New York, Specifically the Charles K. Post Addiction Treatment Center, the State University of New York and the Stony Brook University Medical Center, John Does 1-5, and XYZ Corporations 1-5, for lack of jurisdiction; 8) dismissing any/all causes of action alleging, and striking any/all language from the Claim(s) seeking relief under the theories of negligent management or supervision of personnel, pursuant to the Court of Claims Act § 10 (3) and § 11 (b), for lack of subject matter jurisdiction; 9) striking any/all language from the claim seeking the award of attorneys' fees and costs, pursuant to the Court of Claims Act § 27 for lack of jurisdiction to award same; 10) amending the caption.
At the outset the Court notes that the claim improperly listed The Charles K. Post Addiction Treatment Center, The New York State Office of Alcoholism and Substance Abuse Services, The State University of New York, The Stony Brook University Medical Center, John Does 1-5 and XYZ Corporations 1-5 as defendants in this matter. The Court of Claims is a court of limited jurisdiction wherein claims primarily seeking monetary damages against the State of New York and certain public authorities are brought (Court of Claims Act [CCA] § 9). Individuals cannot be sued in their individual capacity in the Court of Claims (CCA § 9). It is well settled that the State of New York is the real party in interest for claims against state agencies (Morell v Balasubramanian, 70 NY2d 297 [1987]). It is equally clear that claims against a state officer for conduct undertaken in an official capacity and in the exercise of an official governmental function are essentially claims against the State of New York (id.; Woodward v State of New York, 23 AD3d 852, 856 [3d Dept 2005]). Consequently, the only properly listed defendant in the claim is the State of New York. As a result, the Court, sua sponte, dismisses the claim against John Does 1-5 and shall amend the caption to reflect the State of New York as the only properly named defendant in this matter.
Additionally, Court of Claims Act § 27 prohibits the Court from awarding attorney's fees, costs and disbursements except in certain circumstances not present here (Frederick v New York State Thruway Auth., 143 AD3d 1267 [4th Dept 2016]; Gittens v State of New York, 175 AD2d 530 [3d Dept 1991]). Accordingly, that portion of claimants' claim is stricken from the claim.
Defendant states that on April 11, 2013, decedent was brought to the Stony Brook University Hospital Comprehensive Psychiatric Emergency Program (CPEP) for evaluation following a call from his girlfriend who had reported that decedent had referenced killing himself during a telephone call. Decedent was assessed in CPEP and denied any history of, or current, suicidal intent or plan, and reported that he made a "stupid statement." He was discharged home to his family who stated that they were not worried for his safety and were willing to take him home. Decedent did not present to Stony Brook University Hospital at any time thereafter prior to his death, and did not receive care, treatment, evaluation or assessment by anyone associated with Stony Brook University Hospital after April 11, 2013.
Defendant states that decedent began a voluntary admission to the Charles K. Post Addiction Treatment Center on May 29, 2013 and his projected discharge date was June 26, 2013. Decedent was informed of facility rules upon his admission to the Charles K. Post Addiction Treatment Center. On June 22, 2013, decedent received a discharge warning for violating facility rules. Decedent was then discharged from the facility on June 24, 2013 for leaving the building without authorization on June 23 and bringing narcotics into the facility. Upon his discharge claimant was provided with referrals to two inpatient facilities but was instead picked up by his mother and returned to live with his parents in their home. Decedent did not present to the Charles K. Post Addiction Treatment Center or any other State facility after June 24, 2013.
The certificate of death indicates that decedent died of acute heroin intoxication on June 29, 2013.
Claimants do not contest defendant's rendition of the underlying facts of this case. Claimant, Margaret Panagiotidis, is decedent's mother and was appointed voluntary administratrix of decedent's estate on September 23, 2013. A voluntary administrator does not have the power to enforce a claim for the wrongful death of or a claim for personal injuries to the decedent (see SCPA § 1306). Margaret Panagiotidis was issued Letters of Administration on December 13, 2013 which authorized her to prosecute a cause of action for wrongful death. Claimants, Stilianos Panagiotidis, Maryellen Kefalogianis, and Dimitrios Panagiotidis state that they are the brother, sister and father of the decedent, respectively, and are the heirs and distributees at law of decedent's estate.
A notice of claim was served upon Office of the Attorney General on December 9, 2013. A notice of intention to file a claim was served upon Office of the Attorney General on December 16, 2013.
The Court of Claims Act only permits service of a document entitled a notice of intention to file a claim or one entitled claim. Claimants stipulated that the notice of claim was intended to be a notice of intention to file a claim.
Defendant moves for dismissal due to claimant's failure to serve a notice of intention or claim within 90 days of the date of accrual for any causes of action seeking to recover for decedent's conscious pain and suffering, medical malpractice/negligence, negligent management or supervision of personnel and any individual causes of action asserted on behalf of Margaret Panagiotidis, Stilianos Panagiotidis, Maryellen Kefalogianis, and Dimitrios Panagiotidis.
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 Court of Appeals has long held that "[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" (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). Accordingly, a claimant who has not met the literal requirements of the Court of Claims Act has not properly commenced his action (Lichtenstein v State of New York, 93 NY2d 911, 913 [1999]). The failure of a claimant to strictly comply with Court of Claims Act § 10 (3) is a jurisdictional defect compelling dismissal of a claim (Kiesow v State of New York, 161 AD3d 1060 [2d Dept 2018]). Claimants failed to either serve a notice of intention to file a claim or file and serve a claim within ninety days of the accrual of their claims seeking to recover for decedent's conscious pain and suffering, medical malpractice/negligence, negligent management or supervision of personnel as well as any derivative claims. As a result the Court is constrained to dismiss those claims.
Defendant also argues that the claim lacks sufficient detail and fails to plead facts relied upon to set forth a valid cause of action or assert a legal theory upon which the State is liable for decedent's wrongful death as required by Court of Claims Act § 11 (b) and therefore, the claim must be dismissed for lack of jurisdiction.
Court of Claims Act § 11 (b) requires in pertinent part 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." These requirements are jurisdictional in nature and must be strictly complied with in order to properly initiate an action against defendant (Kolnacki v State of New York, 8 NY3d 277 [2007]). "The Court of Claims Act does not require [defendant] to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski v State of New York, 1 NY3d 201, 208 [2003]).
Claimants allege in the claim that they are seeking to recover damages resulting from the wrongful death of decedent. Claimants contend that on April 11, 2013, decedent was admitted into the Stony Brook University Medical Center and was discharged the same day. On May 14, 2013, decedent was admitted to Nassau University Medical Center and was discharged on May 19, 2013. The claim recites that on May 29, 2013, decedent was admitted to the Charles K. Post Addiction Treatment Center and was discharged on June 24, 2013. Decedent died on June 29, 2013.
Claimants continue in the claim that:
"The death of Paul and resulting to MARGARET PANAGIOTIDIS was caused solely by the negligence, careless, and recklessness of the defendant, THE STATE OF NEW YORK, in the ownership, management, supervision, control, and maintenance of OASAS, the Stony Brook University Medical Center, and CK Post.
The defendant THE STATE OF NEW YORK, their agents, servants, and/or employees were wrongful, negligent, wanton, careless, reckless, misfeasant and tortious in the ownership, control, management and/or supervision of the OASAS, Stony Brook University Medical Center, NUMC and CK Post; in permitting to exist, creating and maintaining dangerous and hazardous conditions which caused or contributed to claimant's injuries; all of which resulted in or contributed to the death of the deceased and resulting injuries sustained by claimant.
The defendants' agents, servants, and/or employees including, but not limited to, doctors, nurses, professionals and staff committed malpractice in their negligent and reckless treatment of the deceased prior to his death, causing or contributing thereto.
The defendant THE STATE OF NEW YORK including defendants THE CHARLES K. POST ADDICTION TREATMENT CENTER, THE NEW YORK STATE OFFICE OF ALCOHOLISM AND SUBSTANCE ABUSE SERVICES, THE STATE UNIVERSITY OF NEW YORK, AND THE STONY BROOK UNIVERSITY MEDICAL CENTER and its agents, servants, employees and associates had actual and constructive notice of the previous conditions.
As a result of the above, the claimant's decedent, Paul, died on June 29, 2013."
The Court finds that claimants have failed to provide a sufficiently detailed description of the particulars of the claim to satisfy the requirements of Court of Claims Act § 11 (b) (Lepkowski v State of New York, 1 NY3d 201, 208 [2003]; Sharief v State of New York, 164 Ad3d 851 [3d Dept 2018]; Sommer v State of New York, 131 AD3d 757 [3d Dept 2015]; Prisco v State of New York, 62 AD3d 978 [2d Dept 2009]; Czynski v State of New York, 53 AD3d 881 [3d Dept 2008]). Failure to abide by these pleading requirements constitutes a jurisdictional defect mandating dismissal of the claim (id.; Kolnacki v State of New York, 8 NY3d 277 [2007]).
Additionally, defendant argues that claimants' notices of intention to file a claim are deficient and insufficient to extend claimants' time to serve and file a claim.
Court of Claims Act § 10 (2) provides 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, 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 death of the decedent. In any event such claim shall be filed and served upon the attorney general within two years after the death of the decedent."
To the extent claimants are asserting a claim for wrongful death in their first notice of intention to file a claim served on December 9, 2013, the document was served prior to an administrator being appointed. Court of Claims Act § 10 (2) mandates that a notice of intention asserting a wrongful death cause of action be served within 90 days after the appointment of an administrator. Claimant, Margaret Panagiotidis, was issued Letters of Administration on December 13, 2013 which authorized her to prosecute a cause of action for wrongful death. Thus, the notice of intention to file a claim was prematurely served on December 9, 2013 and did not comply with the jurisdictional requirements for bringing a wrongful death claim in the Court of Claims (Colombo v State of New York, 135 AD3d 804 [2d Dept 2016]).
To the extent claimants are asserting a claim for wrongful death in their second notice of intention to file a claim served December 16, 2013, the document was properly served within ninety days after the appointment of the administrator pursuant to Court of Claims Act § 10 (2).
Court of Claims Act § 11 (b) requires that a notice of intention to file a claim set forth the same matters as a claim except that the items of damage or injuries and the sum claimed need not be stated.
The December 16, 2013 Notice of Intention to File a Claim lists the "nature of the claim" as:
To recover money damages for wrongful death, lost (sic) of services, pain and suffering, severe emotional distress, medical expenses and related damages incurred by and on behalf of claimant Estate of Apostolos E. Panagiotidis by reason of the negligence, recklessness and carelessness of the Nassau University Medical Center, their agents, servants employees and/or licensees.
The December 16, 2013 Notice of Intention to File a Claim lists the "time when, the place where and the manner in which the claim arose" as:
On or about 4/11/13 the claimant was admitted into the Stony Brook University Medical Center ("Center") and was discharged on 4/11/13. The Center their agents, employees and associates were negligent and as a result Apostolos Panagiotidis died on June 29, 2013.
Defendant puts forth without contradiction that the Nassau University Medical Center is not a State facility and has no association with Stony Brook University Hospital. Defendant also points out that notice of intention to file a claim makes no mention of the Charles K. Post Addiction Treatment Center.
The Court finds that claimants have failed to provide a sufficiently detailed description of the particulars of the claim in the notice of intention to file a claim to satisfy the requirements of Court of Claims Act § 11 (b) (Lepkowski v State of New York, 1 NY3d 201, 208 [2003]; Sharief v State of New York, 164 Ad3d 851 [3d Dept 2018]; Sommer v State of New York, 131 AD3d 757 [3d Dept 2015]; Prisco v State of New York, 62 AD3d 978 [2d Dept 2009]; Czynski v State of New York, 53 AD3d 881 [3d Dept 2008]). Since claimants' notice of intention was deficient, claimants did not receive the benefit of the two-year extension and were obligated to file their claim within 90 days of its accrual (Sommer v State of New York, 131 AD3d 757 [3d Dept 2015]). Claimants failure to do so requires dismissal of the wrongful death action.
Therefore, for the foregoing reasons, defendant's motion is granted and the claim is dismissed in its entirety.
Given the Court's dismissal of the claim, it did not reach defendant's remaining ground for dismissal based on the lack of standing of Stilianos Panagiotidis and Maryellen Kefalogianis.
October 17, 2018
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims