New York State Court of Claims

New York State Court of Claims
PARK v. THE STATE OF NEW YORK, # 2017-041-083, Claim No. 130036, Motion No. M-91015


Claim alleging negligent investigation by the New York State Department of Health, Office of Professional Medical Conduct, is dismissed for lack of jurisdiction.

Case information

UID: 2017-041-083
Claimant(s): KIBUM PARK
Claimant short name: PARK
Footnote (claimant name) :
Footnote (defendant name) : The caption is amended to state the proper defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 130036
Motion number(s): M-91015
Cross-motion number(s):
Claimant's attorney: KIBUM PARK
Pro Se
Defendant's attorney: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
By: Paul F. Cagino, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: November 21, 2017
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Defendant moves to dismiss the claim, in lieu of answering, because the claim was not timely served and because the Court lacks subject matter jurisdiction over the claim. Claimant opposes the defendant's motion.

Claimant made at least two submissions of documents to the Court after the return date of the motion and has, belatedly, asked permission to serve additional papers after the return date of the motion. The claimant's request is denied and the Court's decision and order is based upon the submissions of the parties made prior to the motion's return date. Even so, the Court reviewed the two late motion submissions made by claimant and notes that neither would have had any effect on the Court's decision and order.

The claim seeks recovery against defendant based upon an allegedly negligent investigation conducted by the New York State Department of Health, Office of Professional Medical Conduct (OPMC), of a complaint of medical misconduct filed by claimant regarding medical treatment received by his son. The OPMC investigation was closed, and, according to the claim, the claimant's cause of action accrued on May 2, 2017.

The claim was initially served on the Attorney General on July 27, 2017 and rejected and returned that same day via letter to claimant, advising that the unverified claim was being treated as a nullity pursuant to CPLR 3022.

Court of Claims Act 11 (b) provides that the "claim . . . shall be verified in the same manner as a complaint in an action in the supreme court." The Court of Appeals has interpreted the provisions of Section 11 (b) as "'substantive conditions upon the State's waiver of sovereign immunity'" (Kolnacki v State of New York, 8 NY3d 277, 280-281 [2007], quoting Lepkowski v State of New York, 1 NY3d 201, 207 [2003]), and instructed that "[t]he failure to satisfy any of the conditions is a jurisdictional defect" (Kolnacki at 281).

"Where a pleading is served without a sufficient verification in a case where the adverse party is entitled to a verified pleading, he [or she] may treat it as a nullity, provided he gives notice with due diligence to the . . . adverse party that he elects so to do" (CPLR 3022).

The court finds that the defendant exercised due diligence in immediately notifying the claimant that it was treating the claim as a nullity for lack of verification, as required by the provisions of CPLR Rule 3022 and Court of Claims Act 11 (b).

The unverified claim served on the Attorney General by certified mail, return receipt requested, on July 27, 2017 is insufficient to obtain jurisdiction over defendant.

Claimant susequently served a verified copy of the claim on the Attorney General by certified mail, return receipt requested, on August 8, 2017.

Pursuant to Court of Claims Act 10 (3):

"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."

The claim accrued on May 2, 2017 and was required to be served on the Attorney General on or before July 31, 2017. The verified claim was not served on the Attorney General until August 8, 2017.

Courts have consistently held that "[a]s a condition of the State's limited waiver of sovereign immunity, those requirements [timely filing and service] are strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim" (Welch v State of New York, 286 AD2d 496, 497-498 [2d Dept 2001]; see Robinson v State of New York, 38 AD3d 1030 [3d Dept 2007]; Pizarro v State of New York, 19 AD3d 891, 892 [3d Dept 2005], lv denied 5 NY3d 717 [2005]).

The claimant failed to timely serve the claim and the Court thus lacks jurisdiction over the claim.

In addition to the Court's lack of jurisdiction due to the untimely service of the claim, the Court lacks subject matter jurisdiction over the claim.

The jurisdiction of the Court of Claims is invoked where money damages are the essential object of the claim, unlike an instance where the principal claim is equitable in nature (such as to review action or inaction by a state agency), with monetary relief being incidental to the principal claim (see Harvard Fin. Servs. v State of New York, 266 AD2d 685, 685 [3d Dept 1999]; Matter of Gross v Perales, 72 NY2d 231, 236 [1988]).

In City of New York v State of New York (46 AD3d 1168, 1169-1170 [3d Dept 2007], lv denied 10 NY3d 705 [2008]), the court explains that:

"Two inquiries must be made to determine if the Court of Claims has subject matter jurisdiction. As that court has 'no jurisdiction to grant strictly equitable relief' (Psaty v Duryea, 306 NY 413, 416 [1954]), but may grant incidental equitable relief so long as the primary claim seeks to recover money damages in appropriation, contract or tort cases (see Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 671 [1997]), 'the threshold question is "[w]hether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim"' (Madura v State of New York, 12 AD3d 759, 760 [2004], lv denied 4 NY3d 704 [2005], quoting Matter of Gross v Perales, 72 NY2d 231, 236 [1988]). The second inquiry, regardless of how a claimant categorizes a claim, is whether the claim would require review of an administrative agency's determination--which the Court of Claims has no subject matter jurisdiction to entertain (see Hoffman v State of New York, 42 AD3d 641, 642 [2007]), as review of such determinations are properly brought only in Supreme Court in a CPLR article 78 proceeding (see Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757 [1991])."

In order to award claimant damages in this action, the Court would necessarily be required to review the allegedly negligent investigation conducted by OPMC. The Court lacks jurisdiction to do so.

Generally, the proper venue for review of a determination of the OPMC is a Supreme Court Article 78 proceeding (see, e.g. Posada v New York State Dept. of Health, 75 AD3d 880 [3d Dept 2010], lv denied 15 NY3d 712 [2010]).

The Court additionally lacks subject matter jurisdiction because the claim fails to comply with Court of Claims Act 11 (b) in that it fails to allege facts sufficient to state a cause of action. In particular, the claim fails to allege facts showing that defendant owed a cognizable legal duty to claimant sufficient to support the claim's negligence-based cause of action.

Valdez v City of New York (18 NY3d 69, 75 [2011]), explains that where a "case involves . . . a classic governmental, rather than proprietary, function . . . [it is a] fundamental obligation of a [claimant] pursuing a negligence cause of action to prove that the putative defendant owed a duty of care."

The defendant's statutory mandate (Public Health Law 230) to investigate acts and omissions allegedly constituting professional medical misconduct is a governmental function for which the state owes no actionable duty of care to any particular person or entity (see Lauer v City of New York, 95 NY2d 95, 100 [2000]: "To sustain liability against a municipality, the duty breached must be more than that owed the public generally."

In McLean v The City of New York (12 NY3d 194, 203 [2009]), the Court of Appeals recited the law as to when the state may be held liable for the negligent performance of a governmental function:

"Government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general."

A "[special] duty is born of a special relationship between the [claimant] and the governmental entity. When such a relationship is shown--and it is [claimant's] burden to establish it--the government is under a duty to exercise reasonable care toward the [claimant]" (Pelaez v Seide, 2 NY3d 186, 198-199 [2004]). The Pelaez opinion explains that a "special relationship can be formed in three ways: (1) when the [defendant] violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the [defendant] assumes positive direction and control in the face of a known, blatant and dangerous safety violation" (Pelaez, 2 NY3d at 199-200 [2004).

Even were the performance of defendant considered to be ministerial, claimant is required to allege facts sufficient to show that he was owed a special duty by defendant. Claimant has not done so, and does not even suggest that the defendant owed him a special duty of care.

The claim fails to allege a cognizable legal duty of care running from defendant to claimant. The claim thus fails to state a negligence-based cause of action and fails to satisfy Court of Claims Act 11 (b) in that it fails to allege facts stating a cognizable cause of action. The Court lacks subject matter jurisdiction over the claim (see DeHart v State of New York, 92 Misc 2d 631, 634 [Ct Cl 1977]: "Although the precise wording of section 11 does not appear to require that a claim state a valid cause of action, the cases are clear that without such a statement a claim is legally deficient and subject to fatal attack, Patterson v State of New York, 54 AD2d 147; Davis v State of New York, 28 AD2d 609; Weinstein v New York State Thruway Auth., 27 Misc 2d 503").

Notably, New York does not recognize a cause of action for negligent investigation (Brown v State of New York, 45 AD3d 15, 26 [2007], lv denied 9 NY3d 815 [2007]; Russ v State Empls. Fed. Credit Union [SEFCU], 298 AD2d 791, 793 [3d Dept 2002]).

The claim fails to state a cause of action and fails to allege facts sufficient to satisfy the jurisdictional pleading requirements of Court of Claims Act 11 (b).

The defendant's motion to dismiss the claim is granted. The claim is dismissed.

November 21, 2017

Albany, New York


Judge of the Court of Claims

Papers Considered:

1. Defendant's Notice of Motion to Dismiss in Lieu of Answer, filed September 5, 2017;

2. Affirmation of Paul F. Cagino, dated September 5, 2017, and annexed exhibits;

3. "Plaintiff's Response to Defendant's Motion to Dismiss Plaintiff's Original Complaint," filed September 20, 2017;

4. "Auto Insurance Fraud" submission of claimant, filed September 25, 2017.