Antoine v. State

• Decision Date: 25 March 1980
• Docket Number: No. 63578,63578
• Citation: 103 Misc.2d 664,426 N.Y.S.2d 917
• Parties: Marie Carole ANTOINE, as Administratrix of the Goods, Chattels and Credits which were of "Jane" Antoine, Deceased, and Marie Carole Antoine, Individually, Claimants, v. The STATE of New York and the State University Hospital of the Downstate Medical Center, Defendants. Claim
• Court: New York Court of Claims

Page 917

426 N.Y.S.2d 917

103 Misc.2d 664

Marie Carole ANTOINE, as Administratrix of the Goods Chattels and Credits which were of "Jane" Antoine Deceased, and Marie Carole Antoine Individually, Claimants, v. The STATE of New York and the State University Hospital of the Downstate Medical Center, Defendants.

Claim No. 63578.

Court of Claims of New York.

March 25, 1980.

Robert Abrams, Atty. Gen., Howard S. Davis, New York City by Barry M. Hoffman, New York City, for defendants.

MEMORANDUM OPINION

ALBERT A. BLINDER, Judge.

Defendant moves for an order dismissing the claim heretofore filed on the grounds that the Court lacks jurisdiction and that the claim was not timely filed.

It appears from a review of the papers submitted and from the pleadings ¹ filed with the Court, that the claimant, Marie Carole Antoine, was a patient at the Downstate Medical Center from April 30, 1978 to May 2, 1978.

On October 10, 1979, claimant filed a Notice of Intention, individually and as Administratrix for "Jane" Antoine, deceased. It contained an accrual date of on or about April 30, 1978 and complained of the pain and suffering and death of the newborn "Jane" Antoine, as well as her own pain and suffering.

Thereafter, on October 24, 1979 Claim No. 63578 was filed. It alleges that claimant, Marie Carole Antoine, was a patient at the Downstate Medical Center, having been admitted on April 30, 1978. On that date, it further alleges, Marie Carole Antoine gave birth to a child.

There are four causes of action asserted in the pleading. The first cause of action sounds in medical malpractice alleging negligence resulting in injuries to the claimant, Marie Carole Antoine, individually.

The second cause of action sounds in medical malpractice alleging negligence resulting in the wrongful death of "Jane" Antoine, and the appointment of claimant, Marie Carole Antoine, as Administratrix.

The third cause of action re-alleges the liability in the first and second causes and demands damages sustained by the decedent, "Jane" Antoine, by virtue of pain and suffering until the time of her death.

The fourth cause of action, in its heading, alleges that it is ". . . ON BEHALF OF PLAINTIFF ADMINISTRATRIX, . . .", but the text of the paragraphs numbered twenty-sixth, twenty-seventh and twenty-eighth indicates that the damages sought are for the claimant individually and as Administratrix. It alleges that the failure to render medical care and attention ". . . was done in a willful, wanton and malicious manner . . ." and further alleges that the defendant ". . . knew or had reason to know that the plaintiffs were in need of medical care and attention which defendant willfully, wantonly and maliciously refused to give thereby causing injuries to the plaintiff, MARIE CAROLE ANTOINE and causing the death of the plaintiff, ' "JANE" ' ANTOINE."

Defendant premises its motion on the fact that the claim failed to allege the date that claimant was appointed Administratrix; that it was filed one and one-half years after Marie Carole Antoine's discharge from Downstate Medical Center; and further that it may have been filed more than 90 days after her appointment as Administratrix. The claim, as filed, it is submitted, fails to satisfy the jurisdictional statute of limitations and pleading requirements of the Court of Claims Act. Finally, it is submitted, the fourth cause of action is premised on intentional tort; and the statute of limitations for intentional tort is one year pursuant to CPLR 215. Since the accrual of the action occurred on April 30, 1978, and the claim was filed on October 24, 1979, this cause of action, it is submitted, is time barred.

Claimants' counsel, in their reply affidavit, have annexed a copy of the Limited Letters of Administration which indicate claimant's appointment on July 25, 1979. It also avers that the causes alleged by the claimant as Administratrix ". . . are solely derivative of her claim for wrongful death and therefore, fall within the requirements of section 10(2) of the Court of Claims Act."

In reply to defendant's contention that the fourth cause of action is time barred, claimants' counsel argues "(t)hat claimant is not seeking recovery in this cause of action on the theory of intentional tort, but rather seeks punitive damages because of the wanton and malicious manner in which the respondents acted against the claimant."

The Court upon reviewing this motion cannot make the distinction that claimants' counsel have argued. The cause of action of claimant, individually, is separate and legally distinct from those which she pursues as the Administratrix of the Estate of "Jane" Antoine. The affidavit in support of the motion alleges claimant's hospitalization from April 30, 1978 until May 2, 1978. No later date appears in any other papers. She, therefore, had 90 days after May 2, 1978 in which to either file a claim or a notice of intention. She did not so timely file. Court of Claims Act, Section 10, subdivision 3. Lewis v. State of New York, 26 A.D.2d 878, 274 N.Y.S.2d 255, affd. 25 N.Y.2d 881, 303 N.Y.S.2d 890, 250 N.E.2d 880.

The causes in behalf of the Estate of "Jane" Antoine have a different accrual date. Pursuant to Court of Claims Act, Section 10, subdivision 2, the Administratrix had 90 days after her appointment to file a claim, or a notice of intention. If the latter is filed, the claim must be filed within two years after the death of the decedent. In the case at bar, claimant was appointed Administratrix on July 25, 1979. She filed a notice of intention on October 10, 1979, which was within 90 days after her appointment. Thereafter, the claim was filed on October 24, 1979. The filing of the claim was within two years of the death of "Jane" Antoine. Hence, it was timely filed. Court of Claims Act, Section 10, subdivision 2; Satinoff v. State of New York, 50 A.D.2d 1048, 377 N.Y.S.2d 747; Matter of Johnson v. State of New York, 49 A.D.2d 136, 373 N.Y.S.2d 671; cf. Lurie v. State of New York, App.Div., 423 N.Y.S.2d 969 (Third Department, 1980).

The first cause of action, set forth in the claim, was in behalf of claimant, individually. It is hereby dismissed. The second cause of action was alleged to have been brought in behalf of the claimant as Administratrix. Although it is inartistically drawn and confusing, it includes a cause of action for wrongful death, which the Court deems legally sufficient.

The third cause of action is for the pain and suffering sustained by "Jane" Antoine prior to her death. Pursuant to EPTL 11-3.2, subdivision (b), a personal injury cause of action is not lost by virtue of the death of the person in whose favor it accrued. An action for it may be brought by the personal representative of the decedent. Defendant's counsel argues that, as to this cause of action, subdivision 3 of the Court of Claims Act applies. This would require a filing within 90 days after the accrual of the claim. Defendant cites as an authority for this proposition Cruz v. Mt. Sinai Hospital, 61 A.D.2d 915, 402 N.Y.S.2d 842. In Cruz a surviving personal injury cause of action was dismissed where suit was commenced some three years after the alleged wrongful event. The Appellate Division (First Department) held that, although the decedent was an infant, the disability was not effective as a tolling limitation since a personal representative existed at the time of the decedent's death who was not under a disability. Under the authority of CPLR 214 the case was therefore time barred. Also see Ratka v. St. Francis Hospital, 54 A.D.2d 587, 387 N.Y.S.2d 162; Cohen v. Steigman, 249 App.Div. 819, 292 N.Y.S. 750.

Claimants' counsel, in their reply affidavit, do not address this point. They merely make the conclusory statement that ". . . this action was commenced within the time limited by law . . .". If defendant's contention is correct and subdivision 3 applies, the failure to have claimant appointed before the expiration of the 90 day period does not toll the time requirements. See Smith v. State of New York, 53 A.D.2d 756, 384 N.Y.S.2d 517, affd. 41 N.Y.2d 1063, 396 N.Y.S.2d 174, 364 N.E.2d 838.

At common law, all actions arising ex delicto died with the person by whom or to whom the wrong was done. Hegerich v. Keddie, 99 N.Y. 258, 1 N.E. 787. The survival of the cause of action for personal injuries which may be brought by the decedent's personal representative is permissible by statute. EPTL, Section 11-3.2. Also see Hansen v. City of New York, 274 App.Div. 196, 80 N.Y.S.2d 249, affd. 299 N.Y. 136, 85 N.E.2d 905. Likewise, the cause of action for wrongful death has been created by statute, ² initially by Parliament in Lord Campbell's Act of 1846, then in New York by Chapter 450 of the Laws of 1847, and now embodied in EPTL 5-4.1. Caffaro v. Trayna, 35 N.Y.2d 245, 248, 360 N.Y.S.2d 847, 848, 319 N.E.2d 174, 175. ³ The State's waiver of immunity from liability originally contained in Section 12-a of the Court of Claims Act of 1920 (Chapter 467 of the Laws of 1929), now Section 8 of the Court of Claims Act of 1939 (Chapter 860), did not mention an action for wrongful death. Nevertheless, by case law, the waiver was deemed to have included such a cause of action. Davison, Claims Against the State of New York, Section 9.05. Also see Smith v. State of New York, 148 Misc. 524, 266 N.Y.S. 198, revd. on other grounds 241 App.Div. 656, 269 N.Y.S. 989, 154 Misc. 849, 278 N.Y.S. 330, affd. 243 App.Div. 682, 277 N.Y.S. 936, affd. 268 N.Y. 551, 198 N.E. 400.

There is no question that the Legislature intended Section 9 of the Court of Claims Act to include within its ambit claims for wrongful death. See Burke v. State of New York, 64 Misc. 558, 119 N.Y.S. 1089. However, under Court of Claims Act, Section 9, subdivision 2, the requirement was made that the claimant comply with the limitations of Article II. Court of Claims Act, Section 10, subdivision 3 sets forth the time requirements for any...