Defendant's motion to dismiss the claim. Claimants' cross motion to have the notice of intention converted into a claim.
|Claimant(s):||CARL GOVERNALE and CHRISTINE GOVERNALE|
|Claimant short name:||GOVERNALE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||GINA M. LOPEZ-SUMMA|
|Claimant's attorney:||Doreen J. Shindel & Associates, P.C.
By: Doreen J. Shindel, Esq. of Counsel
|Defendant's attorney:||Hon. Eric T. Schneiderman, Attorney General
By: Ross N. Herman, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 16, 2018|
|See also (multicaptioned case)|
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-D; Claimants' Notice of Cross-Motion; Claimants' Affirmation in Partial Opposition to Defendant's Motion and in Support of Claimants' Cross-Motion with annexed Exhibits 1-9; Defendant's Reply Affirmation in Further Support and in Opposition to Claimants' Cross-Motion with annexed Exhibits A-B; and Claimants' Reply Affirmation in Further Support of Cross-Motion with annexed Exhibit 1.
Defendant, the State of New York, has brought this motion pursuant to Court of Claims Act §§ 10 (3) and 11 (a) as well as CPLR 3211 (a) (2) and (8) seeking an order dismissing the claim on the grounds that the claim is untimely and the claim was not properly served. In reply, claimants, Carl Governale and Christine Governale, have brought a cross motion seeking an order converting the notice of intention to file a claim into a claim(1) . Claimants also seek an order permitting them to amend their pleading to state a cause of action on behalf of Christine Governale for loss of services, consortium, society, love and affection pursuant to CPLR § 205 (a). Lastly, claimants seek an extension of time to serve a Certificate of Merit pursuant to CPLR § 2001 and CPLR § 2004.
On March 27, 2015, claimants personally served a notice of intention to file a claim upon the Office of the New York State Attorney General in which claimants alleged claims of medical malpractice against defendant that occurred on January 22, 2015 at University Hospital at Stony Brook. The claims arose out of retinal detachment surgery performed upon Carl Governale at the Hospital. Although Christine Governale, the wife of Carl Governale, is listed in the caption in the notice of intention, the body of the notice of intention does not assert any derivative causes of action on her behalf.
On February 27, 2017, claimants e-filed a claim alleging that on January 22, 2015 Carl Governale was a patient at Stony Brook University Hospital where he suffered injuries due to defendant's malpractice involving a retinal detachment surgery and a hemorrhage due to a failed intubation. The claim also puts forth a derivative claim on behalf of Christine Governale. The claim was served upon the Office of the Attorney General on November 6, 2017 by regular first class mail.
Defendant argues that the claim must be dismissed as it was not served in accordance with the requirements of Court of Claims Act §§ 10 (3) and 11 a (i).
Court of Claims Act § 10 (3) requires 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."
Court of Claims Act § 11 a (i) requires that:
"the claim shall be filed with the clerk of the court and a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court. Any notice of intention shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for service upon the attorney general. Service by certified mail, return receipt requested, upon the attorney general shall not be complete until the claim or notice of intention is received in the office of the attorney general. Personal service upon the attorney general shall be made in the same manner as described in section three hundred seven of the civil practice law and rules."
Defendant points out that the claim was filed on February 27, 2017 which is more than two years after the alleged January 22, 2015 accrual date. The claim was also not served on the Attorney General's Office until November 6, 2017, well beyond the two-year period. Additionally, the claim was served upon the Attorney General's Office by regular mail as opposed to personal service or certified mail, return receipt requested.
Claimants argue that the continuous treatment doctrine should apply to this case extending the accrual date to April 30, 2015, the last date Carl Governale was treated by a State employee.
However, even if the Court applied the April 30, 2015(2) date as the accrual date the claim was still served well beyond the required two year time period set forth in Court of Claims Act §§ 10 (3) and 11 (i). Claimants concede that the claim was improperly served on the Attorney General's Office by regular mail instead of by personal service or certified mail, return receipt requested.
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 ; see also Finnerty v New York State Thruway Authority, 75 NY2d 721 ). Claimants' failure to timely serve their claim as well as their failure to serve the claim by one of the authorized methods contained within the Court of Claims Act deprives this Court of jurisdiction over the claim (Lepkowski v State of New York, 1 NY3d 201 ; 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.
Turning to the cross motion, claimants are seeking 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."
Claimants filed the cross motion on December 28, 2017, either approximately 2 years and 11 months after the accrual date listed in the notice of intention or approximately 2 years and 8 months from April 30, 2015. Thus, using either accrual date the motion was presented outside the 2½ year statute of limitations period for medical malpractice actions (see CPLR § 214-a).
As a result, the Court is constrained from granting claimants' motion.
Therefore, for the foregoing reasons, defendant's motion to dismiss the claim is granted. Claimants' cross motion is denied.
March 16, 2018
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims
1. Claimants mistakenly cite to Court of Claims Act § 11 (b) instead of the section governing the requested relief, Court of Claims Act § 10 (8).
2. The notice of intention was served prior to the April 30, 2015 date which raises questions as to the efficacy of the notice of intention.