New York State Court of Claims

New York State Court of Claims
MISHOE v. THE STATE OF NEW YORK, # 2018-054-010, Claim No. 130472, Motion No. M-91539

Synopsis

Defendant's motion to dismiss granted, claim fails to state a claim with sufficient particularity so as to enable defendant to investigate the claim and ascertain its liability, claim also fails to specify the alleged departure from generally accepted medical practices and how such departure proximately caused claimant's injuries.

Case information

UID: 2018-054-010
Claimant(s): CARLISS MISHOE
Claimant short name: MISHOE
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 130472
Motion number(s): M-91539
Cross-motion number(s):
Judge: WALTER RIVERA
Claimant's attorney: CARLISS MISHOE
Pro Se
Defendant's attorney: HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
By: Paul F. Cagino., Assistant Attorney General
Third-party defendant's attorney:
Signature date: February 2, 2018
City: White Plains
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

The following papers were read and considered by the Court on defendant's unopposed motion to dismiss:

Notice of Motion, Attorney's Supporting Affirmation and Exhibit

Defendant brings this pre-answer motion seeking to dismiss the claim based upon claimant's failure to comply with the substantive pleading requirements set forth in Court of Claims Act 11 (b).

Court of Claims Act 11 (b) provides 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." The State's waiver of immunity from suits for money damages is contingent upon claimant's compliance with the specifications set forth in Court of Claims Act 11 (b) (see Lepkowski v State of New York, 1 NY3d 201, 206-207 [2003]). Moreover, "[t]he Court of Claims Act does not require the State to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (id. at 208).

In this matter, the Court is mindful that claimant is proceeding pro se. Accordingly, the Court has given the claim a most liberal reading. Nonetheless, the Court finds that the claim fails to comply with the legislatively mandated pleading requirements (see Kolnacki v State of New York, 8 NY3d 277, 281 [2007] ["nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary"]). The claim fails to state a claim with sufficient particularity so as to enable defendant to investigate the claim and ascertain its liability (see Lepkowski, 1 NY3d at 207).

Specifically, claimant has failed to state the basis upon which defendant should be held liable for claimant's injuries or the manner in which defendant was negligent (see Heisler v State of New York, 78 AD2d 767, 767-768 [4th Dept 1980] ["conclusory or general allegations of negligence that fail to address the manner in which the claimant was injured and how the State was negligent do not meet Court of Claims Act 11's requirements"]). To the extent that the claim alleges a claim for medical malpractice, the claim also fails to specify the alleged departure from generally accepted medical practices and how such departure proximately caused claimant's injuries (see Cendales v State of New York, 2 AD3d 1165, 1167-1168 [3d Dept 2003]; Parker v State of New York, 242 AD2d 785, 786 [3d Dept 1997]).

Accordingly, defendant's unopposed motion to dismiss Claim No. 130472 is hereby GRANTED.

February 2, 2018

White Plains, New York

WALTER RIVERA

Judge of the Court of Claims