Subsequent to this second adjournment by v1jQ0W3u


									DUVERGER v. THE STATE OF NEW YORK, #2006-036-511, Claim No. 106062,
Motion No. M-71304


Where defendant challenges the adequacy of claimant's allegations as against the requirements of
Court of Claims Act section 11, and the Notice of Intention to File a Claim was the
"jurisdictional" document (i.e., the document served during the 90-day jurisdictional period), it is
the contents of that document, not the Claim (which was served many months later) that are

                                        Case Information

UID:                                  2006-036-511

Claimant(s):                          ROBERGEAU DUVERGER as Administrator of the Estate of
                                      MIREILLE DUVERGER, Deceased, and ROBERGEAU
                                      DUVERGER, Individually
Claimant short name:                  DUVERGER

Footnote (claimant name) :
Defendant(s):                         THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):

Claim number(s):                      106062
Motion number(s):                     M-71304
Cross-motion number(s):

Judge:                                MELVIN L. SCHWEITZER
Claimant’s attorney:                  Law Offices of Joseph Lichtenstein, P.C.
                                      By: Jesse Langel, Esq
Defendant’s attorney:                 Eliot Spitzer, Attorney General
                                      By: Mary Y.J. Kim, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:                       March 23, 2006
City:                                 New York


Official citation:
Appellate results:
See also (multicaptioned case)


        This is defendant’s motion to dismiss the claim for lack of jurisdiction and claimant’s
cross-motion for an order deeming the notice of intention to be a claim.1 The claim sounds in
medical malpractice and arises out of the care and treatment rendered to claimant’s wife during
and immediately following pregnancy, allegedly resulting in her death 18 days after the birth of
her third child. Claimant was issued letters of administration on August 21, 2000, and on
September 28, 2000, he served on the defendant a notice of intention to file a claim, alleging in
part as follows:
                “The claim arose on 1/00 and 3/00 and from the admission 5/10/00 to
                5/13/00 up to the time of decedent’s death on 5/28/00 for treatment
                received at the STATE UNIVERSITY OF NEW YORK HEALTH
                the negligent care and treatment received by decedent MIREILLE
                DUVERGER, for her pregnancy by Dr. Guy Etienne and the employees,
                agents, servants at the aforementioned hospital in inadequately controlling
                the decedent’s hypertension; in prescribing Brethine, which was
                contraindicated for pregnant women with hypertension; in allowing the
                decedent to continue taking the Brethine for a long period of time; in
                causing the decedent to have an embolism and in causing the wrongful
                death of the decedent.”
         The claim was served and filed on May 14, 2002 and defendant’s answer was served on
June 21, 2002. Originally, the claim was assigned to Judge Richard E. Sise, and under his
supervision the claim was prepared for trial and a note of issue filed on December 14, 2004.2
On September 20, 2005, the claim was transferred to this court. A trial was scheduled for
December 5, 2005, which was adjourned to February 6, 2006 at defendant’s request. This latter
trial date was adjourned to April 3, 2006 at claimant’s request.
         Subsequent to this second adjournment, in motion papers dated February 7, 2006 and
returnable March 8, 2006, defendant submitted this motion seeking dismissal of the claim for
lack of jurisdiction, alleging that the claim is jurisdictionally defective because it “lacks
specificity” and additionally alleging that the cause of action for conscious pain and suffering
was late filed. Claimant then cross-moved for an order treating the notice of intention as a
         The cross-motion may be disposed of summarily. Court of Claims Act § 10(8) 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.” Here, claimant is not eligible for relief under this
section because the underlying statute of limitations has long since passed, i.e. May 28, 2002 for
the wrongful death cause of action (EPTL § 5-4.1[1]) and November 28, 2002 for the surviving
personal injury cause of action (CPLR §214-a). The cross-motion must be, and hereby is,
denied for this reason.
        The State’s motion to dismiss for lack of jurisdiction is based on its contention that “the
allegations made in the subject Claim are insufficient under Section 11 (b) [of the Court of
Claims Act] and prevailing caselaw . . . in that claimant merely provided boilerplate allegations
of malpractice on the part of defendant” (Affirmation in Support, ¶ 8). Defendant quotes a
portion of the claim which it aptly characterizes as boilerplate and non-specific,3 and then states
that “[n]o other particularization is provided as to the alleged negligence of defendant” (id.).
        In describing claimant’s papers in this manner, defendant ignores the contents of the
notice of intention, served four months after accrual of the personal injury claim and one month
after accrual of the wrongful death claim, and focuses solely on those of the claim, which was
served one and one-half years later. Anticipating that claimant might refer to the allegations of
the notice of intention in opposing the motion to dismiss, defendant submits:
                “Claimant may argue that the Notice of Intention sets forth specific
                allegations of negligence on the part of defendant. However, ‘[W]here
                jurisdiction is implicated, defendant is not required to go beyond the four
                corners of the claim to ascertain information which should have been
                provided in the claim itself.’ Davis v State of New York, Motion No.
                M-69014 (Ct. Cl. December 2, 2004, Marin, J.) 4 . . . ; See also Gonzalez v
                State of New York, Claim No. 106208, Motion No. M-65540 (Ct. Cl.
                December 20, 2002, Waldon, J.). . . .”
(Id., ¶ 14). This paragraph constitutes the entirety of defendant’s argument that the contents of
the notice of intention are irrelevant to the issues raised on this motion. Examination of the
cases cited by defendant, as well as other relevant decisions, reveals that defendant’s reliance on
this line of argument is misplaced and has led defendant to an erroneous conclusion.
         In Davis, supra, the quoted language about the defendant not being required to go beyond
the “four corners” of the claim referred to “attachments that are part of claimant’s motion papers”
(id.). The contents of a notice of intention was not involved in Davis because none was served.
In Gonzalez, supra, defendant alleged that the information contained in both the notice of
intention and the claim was insufficient. Claimant responded that defendant could conduct its
own investigation to ascertain what was missing from both documents. The court, quoting
Grande v State of New York (160 Misc 2d 383, 386, Silverman, J. [1994]), adopted its holding
that “[t]he defendant is not required to go beyond a claim or notice of intention in order to
investigate an occurrence or ascertain information which should be provided pursuant to Court of
Claims Act § 11” (emphasis supplied). Although Grande referenced either a notice of intention
or the claim, as with Davis, no notice of intention was served there either. The Grande decision
also held that because the claimant had failed to comply with jurisdictional requirements of the
Court of Claims Act, the defect could not be cured by an amendment to the claim.
         Later that same year, the same court that decided Grande addressed the situation where an
adequate notice of intention was, in fact, served within the statutory time period (see Court of
Claims Act § 10[3]) and where the claim that followed was “insufficient”. Granting claimants’
motion to amend the claim, Judge Silverman wrote:
                 “In permitting an amendment we must make a distinction between
                 permission to amend a claim to remedy a pleading deficiency and an
               amendment to cure a jurisdictional defect. This claim falls into the
               former category since claimants obtained jurisdiction with their notice of
               intention. In a situation where a claimant has failed to obtain jurisdiction,
               an amendment of a claim cannot be a vehicle to circumvent the
               jurisdictional requirements of the Court of Claims Act (Grande v State of
               New York, 160 Misc 2d 383; Sudakin v Long Is. R. R. Co., 32 AD2d 560)”
               (Cannon v State of New York, 163 Misc 2d 623, 626 [1994]).
In so holding, the court noted that “[w]hen interpreting these statutes we should not lose sight of
their purpose which is to give the State prompt notice of an occurrence and an opportunity to
investigate the facts to determine its potential liability (Heisler v State of New York, 78 AD2d
767)” (Cannon, supra, at 626, emphasis supplied; see also Lepkowski v State of New York, 1
NY3d 201, 207, describing this as the “guiding principle informing section 11[b]”).
        Grande and Cannon, considered together, establish a basis for determining whether a
claimant has satisfied the jurisdictional requirements of the Court of Claims Act when serving a
document purporting to give prompt notice of allegations giving rise to liability and the
opportunity to investigate them: the document served during the pertinent statutory time period
– as set forth in § 10 – is the one to be evaluated. In Grande, the deficient claim could not be
amended because the claim itself was the jurisdictional document, i.e. the document served
during the jurisdictional period. In Cannon, however, amendment of the claim to supply the
information whose absence rendered it “insufficient” had no jurisdictional implications because
the claimants therein had “obtained jurisdiction with their notice of intention.”
        This principle has been followed in every case of which the court is aware where this
issue arose; e.g., Peralta v State of New York (Ct Cl, Scuccimarra, J., decision and order dated
February 10, 2004, UID No. 2004-030-902); Feliciano v State of New York (Ct Cl,
Scuccimarra, J., decision and order dated March 11, 2004, Claim No. 107735, M-67617,
CM-67764); McDonald v State of New York (Ct Cl, Marin, J., decision and order dated
December 5, 2005, UID No. 2005-016-074). 5
        The “four corners” principle upon which defendant relies has generally been applied to
extraneous material (e.g., exhibits to motion papers) or in response to a claimant’s argument that
the information that should have been supplied in a claim or notice of intention could have been
readily ascertained by reference to defendant’s own records (e.g., Lepkowski v State of New York,
supra, 1 NY3d 201; Cobin v State of New York, 234 AD2d 498; but see Cannon v State of New
York, supra 6 and Kerr v State of New York, Ct Cl, Read, P.J. decision and order dated September
26, 2002, Claim No. 105574, M-65237 7 ). It does not apply to items attached to the claim, e.g.,
photographs (Kerr v State of New York, supra) or an I-64 form on an inmate property loss claim
(Davidson v State of New York, Ct Cl, McNamara, J., decision and order dated June 17, 2002,
UID No. 2002-011-557). And it does not apply to a timely and properly served notice of
        The relevant inquiry here, and in all such cases – not addressed by defendant – is whether
the notice of intention gave adequate notice of the allegations and provided an opportunity for the
State to investigate. In addition to the excerpt from the allegations of the notice of intention
quoted supra, the notice herein also alleged that defendant’s employees were negligent:
                 “in failing to treat hypertension; in negligently treating hypertension; in
                 prescribing contraindicated medications; in prescribing Brethine to the
                 decedent; . . . in failing to discontinue the medication Brethine to the
               decedent; in failing to examine the decedent for side effects from Brethine;
               in failing to treat symptoms of shortness of breath of the decedent; in
               negligently treating symptoms of shortness of breath of the decedent; in
               failing to follow up on symptoms of difficulty in breathing; in failing to
               follow up on symptoms of difficulty in breathing; . . . in obtaining a
               consent to administer the medication Brethine without obtaining an
               informed consent from the decedent, MIREILLE DUVERGER; in
               prescribing Brethine to a patient with known hypertension; in failing to
               discontinue Brethine; in allowing the decedent to go to full term in her
               pregnancy while taking Brethine; in failing to attempt to deliver decedent’s
               infant prior to her going into active labor while still taking Brethine; in
               lulling the decedent into a false sense of security while administering
               Brethine during decedent’s full term pregnancy; in failing to treat
               decedent’s hypertension after she delivered the infant on 5/10/00; . . . in
               failing to properly advise decedent of the risks of behavior predisposing
               her to having an embolism; in negligently prescribing Brethine for
               tocolysis; in negligently prescribing Brethine for tocolysis in the face of
               warnings specifically not to use Brethine for tocolysis” (¶ 2).
There can be no serious question but that this notice of intention, which reads like a bill of
particulars, gave more than adequate notice of the specific nature of the claim and afforded
defendant the timely opportunity to fully investigate these detailed allegations, to wit,
section 11(b)’s guiding principle. The notice of intention was referenced in the claim,8 which
was served and filed almost two years after Mrs. Duverger’s death. By that time, defendant’s
prompt investigation presumably was concluded. As the court noted in Legall v State of New
York (10 Misc 3d 800, 803-804 Scuccimarra, J. [2005]), in language equally applicable here:
“[t]he jurisdictional document in this claim was the notice of intention. Served within 90 days
of accrual, it gave adequate notice of the precise nature of the claim as is required by section 11
(b). (See, e.g., Klos v State of New York, 19 AD3d 1173 [2005]; Rodriguez v State of New
York, 8 AD3d 647 [2004]; Wharton v City Univ. of N.Y., 287 AD2d 559 [2001].)”
        Based on the foregoing, defendant’s motion to dismiss the claim for lack of jurisdiction is
denied, and the claim is deemed amended to include the language of the notice of intention and
to strike any language of the claim that can be interpreted as extending beyond the language of
the notice of intention.
        Defendant’s alternative ground for seeking partial dismissal of the claim is that the cause
of action for decedent’s personal injuries prior to her death was late filed. While defendant is
correct in noting that different accrual dates apply to the personal injury and wrongful death
causes of action – the former accruing on the last date of treatment and the latter accruing on the
date of appointment of the estate’s representative (Pelnick v State of New York, 171 AD2d 734,
735; Barrett v State of New York, 161 AD2d 61, 64, affd 78 NY2d 1111) – defendant’s argument
in support of dismissal on this ground fails because of Court of Claims Act § 11(c). The statute
provides that any defense based on alleged untimeliness “is waived unless raised, with
particularity, either by a motion to dismiss made before service of the responsive pleading is
required or in the responsive pleading, and if so waived the court shall not dismiss the claim for
such failure.” (emphasis supplied)
        Here, the relevant defense, as set forth in the answer, reads as follows:
               “The Court lacks jurisdiction over the claim, in whole of [sic] in part, due
               to claimant’s failure to timely serve the notice of intention and the claim
               upon the Attorney General’s Office and to timely file the claim with the
               Court of Claims, in accordance with Court of Claims Act Sections 10 and
               11, which requires service of the notice of intention, or service and filing
               of the claim, within ninety days of the accrual date.”
This defense, as applicable to the circumstances herein, does not meet the particularity
requirement of § 11(c).
         A defense that a claim is untimely “in whole or in part” does not advise the claimant of
defendant’s position with the particularity required by the statute. “A claimant should not be left
in a quandary to determine what an affirmative defense is referring to” (Fowles v State of New
York 152 Misc 2d 837, 840, Silverman, J. [1991]). Here, the defense alleges that the notice of
intention was required to have been served within 90 days of “the accrual date” and the court
lacks jurisdiction because claimant did not serve it “in accordance with Court of Claims Act
Sections 10 and 11.” Because there are two different causes of action, each with a different
accrual date and each requiring action within 90 days of its accrual – one governed by § 10(2)
(wrongful death) and one governed by § 10(3) (personal injury) – simply to allege that the court
lacks jurisdiction “in whole or in part” does not provide sufficient notice to claimant of what
defendant asserts. Rather, this allegation is the functional equivalent of the defense 9 alleged in
Sinacore v State of New York (176 Misc 2d 1, King, J. [1998]), where the court, after analyzing
many cases arising under § 11(c), observed that what was required, at a minimum, was a “clear
statement that the claimant has, in fact, failed to comply with a requirement for bringing suit in
this court” and that the “ ‘conditional’ defense that is set forth in the answer to this claim,
however, does not” contain such a clear statement (id., 10).
         In Brown v State of New York, 10 Misc 3d 1059(A), 3, Patti, J. [2005], a case almost
precisely on point, the court addressed a claim containing a number of causes of action with
different accrual dates, and a defense alleging that claimant failed to serve a notice of intention
within 90 days of the “alleged incident.” The court held that the defense “fails the particularity
test in part because it fails to specify which of the several incidents alleged it alludes to.” The
same conclusion applies here. Referring to “the accrual date,” when there are in fact two accrual
dates, and merely alleging the claim is untimely “in whole or in part” simply leaves claimant
wondering exactly what defendant’s position is. The language of the affirmative defense alleged
herein did not adequately preserve the defense that forms the basis of defendant’s current motion.
It would have sufficed for the defendant simply to have alleged that the court lacked jurisdiction
over the cause of action for personal injury because the notice of intention was served more than
90 days after the accrual of that cause of action. Instead, one cannot discern from defendant’s
articulated defense whether it refers to the claim as a whole or to a portion of the claim; and if the
latter, what portion is alleged to be untimely. This defense is not spelled out “with particularity”
as required by § 11(c), and thus defendant has waived it.
         While these holdings dispose of defendant’s motion, both parties have raised the issue of
the timing of defendant’s motion, made shortly before trial, now scheduled to begin on April 3,
2006, after two adjournments. The note of issue herein was filed on December 14, 2004, 15
months ago, after Presiding Judge Sise had twice directed that all motions be made within thirty
days of its filing. As recounted, supra, notice of this claim first was given by notice of intention
in September 2000; the claim itself was served and filed in May 2002; and the answer was served
the following month.
         In urging the court to deny this motion claimant first takes issue with defendant seeking a
dismissal for alleged jurisdictional defects years after the notice of intention was served and the
statute of limitations expired. Claimant asserts, “[a]fter seven (7) EBT have been held, experts
retained, expert witness disclosures exchanged, numerous court conferences held,
commencement of trial preparation, and thousands of dollars expended” the plaintiff [sic]
deserves his day in court” (Affirmation in Opposition ¶ 4). Perhaps having anticipated that
claimant would raise this matter in response to its motion, defendant asserts in its moving papers
“[i]t is well-established that a motion to dismiss based upon a lack of subject matter jurisdiction
may be made at any time during the proceeding, even upon trial or appeal” (Affirmation in
Support, ¶ 15).
         Defendant first raised its § 11(b) defense – which, if meritorious, necessarily would have
disposed of the entire claim without trial – in its answer in 2002. Yet, until this motion was
filed on February 10, 2006, defendant consistently acted as if it intended to defend the claim on
its merits. Defendant’s assertion of its right to proceed in this manner and to move now or even
“upon trial or appeal” – and in the face of two prior court directives designed to finally resolve
any such jurisdictional issues long before now – is troubling.
         This court is cognizant of defendant’s position that lack of a court’s subject matter
jurisdiction is an issue which may be raised at any time. Nevertheless, for defendant to have
intentionally adopted the strategy of making such a motion on the eve of trial, with apparent
disregard of the court’s prior directions, and thereby to have induced claimant to engage in
extensive and costly trial preparation, does not evince appropriate consideration for the resources
of the State and of litigants, or due regard for the judicial process. While such concerns become
academic here, it is only because the motion lacks merit.
                 For the foregoing reasons, the motion and the cross-motion are denied.

                                                                                    March 23, 2006
                                                                                New York, New York

                                                                     HON. MELVIN L. SCHWEITZER
                                                                       Judge of the Court of Claims

1.The court considered the Notice of Motion to Dismiss, Affirmation in Support and Exhibits;
the Notice of Cross-Motion, Attorney’s Affirmation in Opposition and in Support of
Cross-Motion and Exhibit; Defendant’s Affirmation in Opposition to Cross-Motion and in
Further Support of Motion; and the filed Note of Issue and Daily Reports. Although claimant’s
Notice of Cross-Motion never was filed with the clerk of the court, the supporting Affirmation
was considered in opposition to defendant’s motion.

2.Presiding Judge Sise twice established deadlines for all motions to be made within thirty days
of the filing of the note of issue (see Daily Reports dated May 6, 2003 [“all dispositive motions”]
and October 12, 2004 [“all motions”]). See discussion infra.

3.Paragraph 8 of the claim states:
         “The defendant, its agents, servants, partners, and/or employees were negligent and
careless in the services rendered for and on behalf of the injured claimant, in negligently and
carelessly failing and neglecting to use reasonable care in the services rendered for and on behalf
of the injured claimant; in negligently and carelessly failing and neglecting to heed the injured
claimant’s condition; in negligently and carelessly departing from accepted practices and services
rendered for and on behalf of claimant; in failing to follow good practice; in performing
contraindicated procedures on the claimant; in failing to perform indicated procedures on the
claimant; in failing to follow good and accepted medical practice; and in otherwise being
negligent and careless in the circumstances.”

4.Like many decisions of the Court of Claims since mid-2000, the Davis decision is available at
the court’s web site – – under UID No. 2004-016-071.

5.Peralta, supra: “Since claimant properly invoked the jurisdiction of the court by virtue of his
timely and proper service of a notice of intention that complied with section 11(b) followed up by
service and filing of a claim, within the extended period provided by section 10(3), that states a
cause of action in negligence, the failure to have included the complete description of the
location in the claim is a minor, non-jurisdictional, pleading error and there is no barrier to
addressing that error by amendment.”

        Feliciano, supra: “Here, claimant served an unquestionably adequate notice of intention
by a proper method within the initial 90-day jurisdictional period. She then served and filed her
claim within the expanded, two-year jurisdictional period; a period that owes its very existence to
the adequacy of the notice of intention. The sole reason that claimant was able to serve and file
her claim almost one year after accrual is because she served an adequate notice of intention
within 90 days. There is absolutely no basis, in law or logic, for the contention that in
determining whether claimant provided sufficient information to investigate the claim promptly,
we must ignore the document that was promptly served and consider only the document that was
served many months later, or for the contention that it somehow offends the jurisdictional
scheme set forth in the Court of Claims Act to allow a claim to be amended to include the
contents of the very document upon which the jurisdictional potency of the claim is based.”

         McDonald, supra: “[w]hile it is true here that the text of the claim itself is devoid of
detail, it specifically refers to a previously served notice of intention, which is attached to the
claim and which the claim states is “made a part hereof.” . . . A review of this incorporated notice
of intention indicates that it contains all of the items required by § 11.b of the [Court of Claims]
Act, and meets the Heisler standard.”

6.“An investigation of an accident arising out of work being performed for defendant in an
enclosed building that is under the exclusive control of defendant entails speaking to the person
responsible for the building or that person's agent. A notice of intention which provides a
location specific enough to locate its own employee directly responsible for the building, satisfies
the requirement of section 11 to set forth the place where the claim arose” (id., 627).

7.“Notably, defendant does not here contend that any attempted investigation was thwarted by an
inability to identify the accident site, which defendant surely could have located with the
photographs in hand. Had defendant chosen to speak to someone familiar with the construction
site, investigative time could have been further reduced” (id., 5).

8.Defendant’s problem with the claim itself is that its general language, referencing treatment
dates of almost eight months during which decedent had two separate hospital admissions, is
susceptible of interpretation to encompass alleged negligence by “every employee” of defendant
“in all of defendant’s treatment during the eight month period” (Affirmation in Support, ¶ 12).
This ignores that the claim was preceded, and is necessarily circumscribed, by the notice of
intention, the 90-day “notice” document here. That claimant chose to submit a claim with
general allegations which might go way beyond the notice of intention does not mean the court
lacks jurisdiction over the entire claim; only that to the extent the allegations go beyond the
notice of intention, the court lacks jurisdiction as to them.

9.“That to the extent that the claim was not filed or served within the 90-day time limitation . . .
the Court lacks subject matter jurisdiction of the claim” (176 Misc 2d 1, 3).

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