Latimer-Heman v State of New York

[*1] Latimer-Heman v State of New York 2005 NY Slip Op 50221(U) Decided on January 19, 2005 Court Of Claims Fitzpatrick, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 19, 2005
Court of Claims

KIMBERLY LATIMER-HEMAN, Claimant,

against

STATE OF NEW YORK, Defendant.



109640



For Claimant:

SUGARMAN LAW FIRM, LLP

By: Sandra R. Holihan, Esquire

For Defendant:

ELIOT SPITZER

Attorney General of the State of New York

By: Maureen A. MacPherson, Esquire

Assistant Attorney General

Diane L. Fitzpatrick, J.

Defendant brings a pre-answer motion to dismiss the claim for lack of jurisdiction and

failure to state a cause of action. It is Defendant's position that the claim fails to set forth the information required by Court of Claims Act § 11(b), and that it fails to state a cognizable cause of action. Claimant opposes the motion.

The claim alleges that on May 12, 2004, at approximately 4:30 p.m., Claimant and her granddaughter were in the public area of the Emergency Room Department at the State University of New York Health Science Center, and there was a container of used syringes and/or hypodermic needles negligently located at the height level of Claimant's granddaughter. The Claimant's granddaughter allegedly took a used hypodermic needle and stuck it into Claimant's hand. The claim also asserts that the State "failed to protect its visitors, patients and/or any other persons lawfully on the premises....from hazardous materials such as used syringes and/or hypodermic needles." The claim seeks money damages in the amount of ten million dollars for physical injuries from the needle, the necessary testing to rule out infection and other diseases, emotional distress, pain, suffering, the fear of death or dying, and the inability to participate in ordinary physical relations with her boyfriend.

Court of Claims Act § 11(b) requires that a claim shall (1) state the time when the claim arose; (2) the place where the claim arose; (3) the nature of the claim; (4) the items of damage or injuries alleged to have been sustained; and (5) the total sum claimed. The burden is on the Claimant to provide this minimal information, and the State has no obligation to "ferret out or assemble" the required details (see Lepkowski v State of New York, 1 NY3d 201, 208). The [*2]Court must assess whether the claim contains "a statement made with sufficient definiteness to enable the State to investigate the claim promptly and to ascertain its liability under the circumstances" (Cobin v State of New York, 234 AD2d 498, 499, appeal dismissed 90 NY2d 925). The statement must be specific enough so as not to "mislead, deceive or prejudice the rights of the State"; "[c]onclusory or general allegations of negligence that fail to adduce the manner in which the claimant was injured or how the State was negligent" do not meet the pleading requirements (Heisler v State of New York, 78 AD2d 767, 767-768).

After reviewing the claim, the Court finds that it adequately satisfies the requirements of § 11(b). It specifies generally where the container of used hypodermic needles was found, when the incident occurred and what the State did wrong: placing the container of used syringes and hypodermic needles in a location accessible to children which allegedly breached the State's duty to maintain its premises in a reasonably safe condition. With this information, the State should be able to determine the names and titles of the employees who were working that afternoon, and where the containers for used needles and syringes are located in areas accessible to the public in the Emergency Department, in order to assess its liability. Although Defendant's arguments for dismissal underscore the issues Claimant will have to address to establish her prima facie case, that is not her burden at this juncture. Court of Claims Act § 11(b) requires certain information be provided, which the claim, at least minimally, does reflect. A cognizable cause of action is stated. Whether the intervening acts of Claimant's granddaughter were foreseeable consequences of the alleged negligence is an issue Claimant will have to establish (see Rizzi v Scarsdale Leasing Corp., 223 AD2d 696).

Accordingly, Defendant's motion to dismiss is DENIED. [*3]