Caggiano v State of New York

[*1] Caggiano v State of New York 2009 NY Slip Op 51013(U) [23 Misc 3d 1130(A)] Decided on April 9, 2009 Ct Cl Milano, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 9, 2009
Ct Cl

Michael Caggiano and DONNA CAGGIANO, Claimants, v The State of New York, Defendant.



114616



For Claimants:

MC GIVNEY & KLUGER, P.C.

By: Christopher A. Bacotti, Esq.

For Defendant:

HON. ANDREW M. CUOMO

New York State Attorney General

By: Marcie K. Glasser, Esq., Assistant Attorney General

Frank P. Milano, J.

Claimants move for an order dismissing defendant's First, Second, Third, Fourth, Seventh, Eighth and Ninth Affirmative Defenses and for a "Declaration that this Court has jurisdiction over this Claim."

Defendant opposes the motion and cross-moves to dismiss the claim for failure to adequately state the nature of the claim as required by Court of Claims Act § 11 (b).

The claim arises from an emergency room visit by Michael Caggiano at the Stony Brook University Hospital on December 26, 2005. Claimants allege, among other things, that defendant failed to "properly treat, diagnose, test, inform, advise and/or take a proper patient history of claimant Michael Caggiano," resulting in "acute paraplegia of both lower extremities."

In a prior motion filed on May 12, 2008, claimants' requested, among other things, a "Declaration that this Court has jurisdiction over this Claim." That motion resulted in a Decision and Order, of this Court, filed on July 22, 2008 (Caggiano v State of New York, UID No.2008-041-018, Claim Nos. 114052, 114616, Motion Nos. M-74954, CM-74970 [Milano, J., July 7, 2008]), which denied claimants' request because the Court of Claims, under the circumstances of this claim, lacks jurisdiction to issue a declaratory judgment. The claimants' very same request, needless to say, is denied once again.

The defendant's First Affirmative Defense alleging that the claimants failed to timely file and serve the claim is dismissed. This Court's Decision and Order of July 22, 2008 held that claim 114616 was timely filed and served pursuant to Court of Claims Act §§ 10 and 11, CPLR § 205 (a) and controlling case law. Re-litigation of that issue, needless to say, is precluded by the doctrine of the law of the case (Lipp v Port Authority of New York and New Jersey, 57 AD3d 953 [2d Dept 2008]).

Defendant's Second and Third Affirmative Defenses allege that claim 114616 fails to comply with Court of Claims Act § 11 (b) by failing to sufficiently particularize either "the State's conduct as it regards the incident," or "the nature of the incident alleged in the claim and [*2]the manner in which it occurred."

Court of Claims Act § 11 (b) provides that:

"The claim shall state the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed. A claim for the appropriation by the state of lands, or any right, title or interest in or to lands shall include an inventory or itemized statement of fixtures, if any, for which compensation is claimed. The notice of intention to file a claim shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated. The claim and notice of intention to file a claim shall be verified in the same manner as a complaint in an action in the supreme court."

In Sinski v State of New York (265 AD2d 319 [2d Dept 1999]), the court reiterated the long-established principle that:

"The purpose of the section 11 (b) pleading requirements is to provide a sufficiently detailed description of the particulars of the claim to enable the State to investigate and promptly ascertain the existence and extent of its liability."

This principle has recently been restated in Deep v State of New York (56 AD3d 1260 [4th Dept 2008]) and Jones v State of New York (56 AD3d 906 [3d Dept 2008]).

As set forth above, the claim accrued as a result of an emergency room visit by Michael Caggiano at the Stony Brook University Hospital on December 26, 2005. An initial claim, numbered 112104, was served on defendant on March 17, 2006, within ninety days of accrual. Claim 112104 was dismissed by the Court's Decision and Order (Caggiano v State of New York, UID #2007-041-024, Claim No. 112104, Motion Nos. M-72186, CM-72228 [Milano, J., June 5, 2007]), based upon the failure of the claim to set forth the specific injuries suffered by Michael Caggiano, as required by Court of Claims Act § 11 (b). Prior to dismissal of the initial claim, however, defendant was provided a bill of particulars, in June 2007, detailing the claim and the injuries.

In Matter of O'Shea v State of New York (36 AD3d 706, 707 [2d Dept 2007]), which affirmed the denial of a motion to dismiss a claim for failure to comply with 11 (b) pleading requirements, a somewhat similar procedural history was considered by the court:

"In July 1998 the claimant . . . accidentally cut off two of his fingers while using a table saw. He packed the fingers in ice and went to the emergency room at the University Hospital & Medical Center at Stony Brook, a hospital owned and operated by the defendant. The claimant alleges that, despite repeated entreaties to the emergency room personnel by both he and his wife, he was not treated for approximately six hours, at which point re-attachment of his fingers was no longer possible. Thereafter, the claimants failed to serve a timely notice of intention to file a claim or to actually file such a claim. Thus, in a prior motion, they sought leave to file a late claim. Appended to their motion papers was a proposed claim setting forth the facts and alleging medical malpractice. In October 1999 the Court of Claims granted the motion, and the order of the Court of Claims was affirmed by this Court on appeal . . . The claimants filed a claim seeking [*3]damages for medical malpractice and for negligent hiring and supervision. However, in what was an obvious oversight, the claim did not set forth the fact that the claimant's fingers were severed nor the particulars as to the alleged malpractice."

The O'Shea court held, at p. 707, that:

"The proposed claim in the prior motion provided the defendant with timely notice of all of the relevant facts and allegations giving rise to the claim. Thus, the purpose underlying Court of Claims Act § 11 (b) was clearly served. The defendant had a sufficiently detailed description of the particulars of the claim to enable it to investigate and promptly ascertain the existence and extent of its liability."

Allegations of medical malpractice similar to those made in the claim at issue were held sufficient to satisfy § 11 (b) in Browne v State of New York (16 Misc 3d 902 [Ct Cl 2007]) and Legall v State of New York (10 Misc 3d 800 [Ct Cl 2005]).

In Condolff v State of New York (18 AD3d 797 [2d Dept 2005]), it was held that an allegation:

"[T]hat the defendant breached a duty of care owed to the injured claimant, . . . by failing to develop and adhere to reasonable procedures for reviewing the qualifications of its credentialed medical staff, and that such breach was a proximate cause of the injured claimant's injuries, sufficiently stated the nature of the claim."

Here, in addition to the information provided in the initial claim within the first ninety days of accrual, and the more detailed information provided in the June 2007 bill of particulars, claimants have named particular doctors and nurses involved in the alleged malpractice and alleged that defendant "failed to properly treat, diagnose, test, inform, advise and/or take a proper patient history of claimant Michael Caggiano." The claim further alleges that claimant Michael Caggiano suffered, among other injuries, "acute paraplegia of both lower extremities" as a result of defendant's negligence.

Based upon the foregoing, the Second and Third Affirmative Defenses contained in defendant's answer are dismissed and the defendant's cross-motion to dismiss the claim is denied.

Defendant's Fourth Affirmative Defense alleges that the claim fails to comply with Uniform Rules for the Court of Claims § 206.6 (b) which requires the claim to include a "schedule showing in detail each item of damage claimed and the amount of such item." That rule, however, was promulgated prior to the amendment of § 11 (b), effective August 15, 2007, which eliminated the requirement that the "total sum claimed" be set forth in "an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death." Further, the provisions of the Uniform Rules for the Court of Claims are not jurisdictional requirements (Benn v State of New York, UID #2007-009-036, Claim No. 113203, Motion Nos. M-73449, CM-73567 [Ct Cl, Midey, J., December 5, 2007]). The defendant's Fourth Affirmative Defense is dismissed.

Defendant's Seventh Affirmative Defense alleges that the claimants' injuries or damages were contributed to by claimants' own culpable conduct or by the culpable conduct of others for whom defendant has no legal responsibility. Claimants' motion to dismiss this defense is denied.

The motion is unsupported by the affidavit of anyone with personal knowledge of either [*4]the alleged malpractice or claimants' injuries and damages. Further, disclosure proceedings have barely begun, much less been completed, and because, contrary to the affirmation of claimants' attorney, evidence could conceivably exist which would tend to prove that claimant Michael Caggiano contributed to the alleged failure to properly diagnose his condition (such as, for example, by providing an incomplete or inaccurate medical history) or that he otherwise contributed to the severity of his injuries and damages (such as, for example, by failing to follow discharge instructions). Similarly, it cannot be determined, at this stage of the action, whether an independent medical provider, or other tortfeasor, for whom defendant has no legal responsibility, may have contributed to claimants' injuries and damages (see Werner v Central General Radiologists, 130 AD2d 574 [2d Dept 1987]).

The Eighth Affirmative Defense alleging that the only proper defendant is the State of New York is dismissed since a review of the July 22, 2008 Decision and Order of this Court, would reveal that the caption of the claim was amended to reflect that the State of New York is the only proper defendant.

Defendant has consented to dismissal of the Ninth Affirmative Defense and that defense is dismissed.

The claimants' motion to dismiss the First, Second, Third, Fourth, Eighth and Ninth Affirmative Defenses is granted. The claimants' motion to dismiss the Seventh Affirmative Defense is denied. The defendant's cross-motion to dismiss the claim is denied.

Albany, New YorkFRANK P. MILANO

April 9, 2009Judge of the Court of Claims