Opinion
# 2017-045-010 Claim No. 122188 Motion No. M-88951
04-17-2017
KOLLEN L. TRENT v. THE STATE OF NEW YORK
Chianese & Reilly Law, PC By: Thomas P. Reilly, Esq. Hon. Eric T. Schneiderman, Attorney General By: Alexia Capote Dodd, Assistant Attorney General
Synopsis
Defendant's motion to dismiss the informed consent cause of action in the claim since it was not included in the notice of intention.
Case information
| UID: | 2017-045-010 |
| Claimant(s): | KOLLEN L. TRENT |
| Claimant short name: | TRENT |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122188 |
| Motion number(s): | M-88951 |
| Cross-motion number(s): | |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | Chianese & Reilly Law, PC By: Thomas P. Reilly, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, Attorney General By: Alexia Capote Dodd, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 17, 2017 |
| 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-B; Claimant's Affirmation in Opposition with Exhibit 1; and Defendant's Reply Affirmation.
Defendant, the State of New York, has brought this motion seeking an order pursuant to CPLR 214-a, 3211 (a) (2) and (5) as well as Court of Claims Act §§ 10 (3) and 11 dismissing the lack of informed consent cause of action. Claimant, Kollen L. Trent, opposes the motion.
The underlying claim in this matter concerns claims of dental malpractice and lack of informed consent. A notice of intention was served upon defendant on August 15, 2012 which stated that the claim arose on and as a result of treatment rendered between February 15, 2012 and May 22, 2012 at the Stony Brook University School of Dental Medicine, Dental Care Center. The notice of intention does not mention a claim for lack of informed consent.
A claim which does put forth a cause of action for lack of informed consent was served and filed on December 31, 2012.
The claim in this matter was improperly titled, "Notice of Claim." --------
Defendant argues that the Court lacks jurisdiction over the lack of informed consent cause of action since it is untimely and the time to file a motion for leave to file a late claim has expired. Defendant asserted untimeliness of the claim as its eighth affirmative defense in its answer.
Court of Claims Act § 10 (3) requires that a claim must be filed and served upon the Office of the Attorney General within ninety days after the accrual of such claim unless the claimant shall within such time serve a notice of intention to file a claim upon the Office of the Attorney General.
"It is well settled that lack of informed consent is a distinct cause of action requiring proof of facts not contemplated by an action based merely on allegations of [medical] negligence" (Jolly v Russell, 203 AD2d 527, 528 [2d Dept 1994]; see Pagan v State of New York, 124 Misc2d 366 [Ct Cl, 1984]; Kleinman v North Shore Univ. Hosp., 48 NYS3d 455 [2d Dept 2017]). "In creating the cause of action, the Legislature not only established the unique factual allegations which support such a cause of action, but also established equally unique defenses to liability, and placed specific limitations on the types of cases in which the cause of action may be asserted (see, Public Health Law § 2805-d)" (Jolly v Russell, 203 AD2d 527, 529 [2d Dept 1994]).
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]). In the present case, a notice of intention was served upon defendant within ninety days of the accrual date, however it did not contain any mention of a cause of action based on lack of informed consent. Claimant's failure to strictly comply with the statutory requirements set forth in Court of Claims Act § 10 (3) deprives this Court of jurisdiction over that portion of the claim asserting a cause of action based on lack of informed consent (Lepkowski v State of New York,1 NY3d 201 [2003]; Weaver v State of New York, 82 AD3d 878 [2d Dept 2011]). Accordingly, the Court must dismiss the lack of informed consent cause of action from the claim.
Claimant is unable to avail herself of late claim relief as authorized by Court of Claims Act § 10 (6) since the applicable statute of limitations period has expired prior to the initiation of such a motion. Thus, the Court is without authority to extend claimant's time to serve a claim asserting a cause of action for lack of informed consent (Miles v City Univ. of N.Y., 126 AD3d 609 [1st Dept 2015]; Dolberry v State of New York, 71 AD3d 948 [2d Dept 2010]; Roberts v City Univ. of N.Y., 41 AD3d 825 [2d Dept 2007]; Crum & Foster Ins. Co. v State of New York, 25 AD3d 643 [2d Dept 2006]).
Therefore, for the foregoing reasons, defendant's motion to dismiss the lack of informed consent cause of action from the claim is granted.
April 17, 2017
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims