Opinion
# 2020-045-008 Claim No. 121708 Motion No. M-93591 Cross-Motion No. CM-94352
03-13-2020
PATRICIA WHITE v. THE STATE OF NEW YORK
Lutfy & Santora By: James L. Lutfy, Esq. Hon. Letitia James, Attorney General By: Kathleen M. Gizzo, Assistant Attorney General
Synopsis
Defendant's motion to dismiss since claim filed was not the claim authorized by late claim relief. Claimant's cross-motion to amend claim etc.
Case information
| UID: | 2020-045-008 |
| Claimant(s): | PATRICIA WHITE |
| Claimant short name: | WHITE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121708 |
| Motion number(s): | M-93591 |
| Cross-motion number(s): | CM-94352 |
| Judge: | Gina M. Lopez-Summa |
| Claimant's attorney: | Lutfy & Santora By: James L. Lutfy, Esq. |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Kathleen M. Gizzo, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 13, 2020 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered by the Court on these motions: Defendant's Notice of Motion; Defendant's Affirmation in Support with annexed Exhibits A-H; Claimant's Notice of Cross-Motion; Claimant's Affirmation in Support of Cross-Motion and in Opposition to Defendant's Motion with annexed Exhibits A-G; Defendant's Reply Affirmation and Affirmation in Opposition with annexed Exhibit A; and Claimant's Reply Affirmation in Support of Cross-Motion with annexed Exhibits A-D.
Defendant, the State of New York, has brought this motion pursuant to CPLR 3211 (a) (2) seeking an order dismissing the claim on the grounds that the Court lacks subject matter jurisdiction over the claim. Claimant, Patricia White, opposes the motion and has brought a cross motion seeking an order permitting claimant to amend the court-approved proposed claim pursuant to CPLR 203 (f); or deeming the filed verified claim to be in compliance with the Courts's July 26, 2012 Decision and Order; or deeming the court-approved proposed claim to have been served on September 7, 2012; or permitting claimant to serve and file the court-approved proposed claim.
Claimant originally initiated this action by seeking leave of this Court to file and serve a late claim pursuant to Court of Claims Act § 10 (6). As part of a late claim motion, Court of Claims Act § 10 (6) requires the claimant to submit a proposed claim to be filed, containing all of the information set forth in CCA § 11. The statute requires the Court to consider whether the delay in filing the claim was excusable; whether the defendant had notice of the essential facts constituting the claim; whether the defendant had an opportunity to investigate; whether the defendant was substantially prejudiced; whether the claim appears to be meritorious and whether the claimant has any other available remedy. In a malpractice action the claimant must also submit an affidavit of merit from an appropriate medical expert (Decker v State of New York, 164 AD3d 650 [2d Dept 2018]).
A failure to include a proposed claim with the motion prevents the Court from considering whether the proposed claim has merit as well as whether the proposed claim complies with the requirements of CCA § 11 (see generally Barnes v State of New York, 164 AD3d 977 [3d Dept 2018]). Where the Court directs that a claim be filed, it is the proposed claim, in haec verba, or with such alterations as the court may have directed at that time which is authorized to be filed.
In the proposed claim submitted as part of claimant's late claim motion, claimant alleged that on July 28, 2009 she presented to Stony Brook University School of Dental Medicine (Stony Brook) for a left sinus lift with bone grafts. She contended, inter alia, that the July 28, 2009 operation was performed negligently, as was as a second corrective surgery which was performed at Stony Brook on September 22, 2009. In a Decision and Order filed July 26, 2012 this Court granted claimant's motion and ordered that within sixty (60) days of the date the Decision and Order was filed, claimant was directed to file and serve the proposed claim, together with payment of the appropriate filing fee, pursuant to Court of Claims Act §§ 11 and 11-a.
Instead of following the directives contained in the Court's Decision and Order, claimant filed and served a verified claim which had not been submitted as part of claimant's late claim motion and thus was not examined by the Court or authorized to be filed by the Court. Claimant's failure to comply with this Court's Decision and Order warrants dismissal of the claim (Matter of Iazzetta v State of New York, 105 Misc 2d 567 [Ct Cl 1980]; Leggett v State of New York, UID # 2007-041-025, Milano, J. [Ct Cl 2007]; Laird v State of New York, UID # 2004-033-075, Lack, J. [Ct Cl 2004]; Ludmerer v State of New York, Claim No. 105505, Waldon, J. [Ct Cl 2003]).
Claimant in her cross motion initially seeks permission to amend her court-approved proposed claim pursuant to CPLR § 203 (f) to add clauses she alleged in her verified claim. However, claimant never timely served and filed her court-approved claim thus there is nothing to amend.
Claimant failed to ever serve and file the court-approved proposed 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]; see also Finnerty v New York State Thruway Authority, 75 NY2d 721 [1989]). Claimant's failure to timely file and serve the court-approved claim deprives this Court of jurisdiction over the claim (Lepkowski v State of New York, 1 NY3d 201 [2003]; Weaver v State of New York, 82 AD3d 878 [2d Dept 2011]; Turley v State of New York, 279 AD2d 819 [3d Dept 2001]). Accordingly, the Court must dismiss the claim.
Claimant's three remaining requests for relief: deeming the filed verified claim to be in compliance with the Courts's July 26, 2012 Decision and Order; deeming the court-approved proposed claim to have been served on September 7, 2012; or permitting claimant to serve and file the court-approved proposed claim must be denied on similar grounds. Claimant is in essence attempting to circumvent the statutory requirements set forth in Court of Claims Act § 10 (6), which state that the Court retains jurisdiction over the claim as long as the applicable statute of limitations for the underlying claim has not yet expired (Crum & Foster Ins. Co. v State of New York, 25 AD3d 643 [2d Dept 2006]). Thus, the Court is without authority to extend claimant's time comply with this Court's July 26, 2012 Decision and Order (Dorr v State of New York, 176 AD3d 1033 [2d Dept 2019]; 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 claim is granted and claimant's cross motion is denied.
March 13, 2020
Hauppauge, New York
Gina M. Lopez-Summa
Judge of the Court of Claims