DeMairo v. State

• Decision Date: 08 May 2019
• Docket Number: Claim Nos. 123838, 124151,2017–08118
• Parties: In the Matter of Carol Ann DEMAIRO, etc., Appellant, v. STATE of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

172 A.D.3d 856

100 N.Y.S.3d 362

In the Matter of Carol Ann DEMAIRO, etc., Appellant,

v.STATE of New York, Respondent.

2017–08118

Claim Nos. 123838, 124151

Supreme Court, Appellate Division, Second Department, New York.

Argued - December 4, 2018

May 8, 2019

Law Offices of Edmond C. Chakmakian, P.C., Hauppauge, NY, for appellant.

Letitia James, Attorney General, New York, N.Y. (Andrew W. Amend and Mark H. Shawhan of counsel), for respondent.

RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

John J. DeMairo died on April 3, 2012, from complications of a lacerated spleen. Carol Ann DeMairo was appointed administrator of his estate on May 15, 2013. On July 15, 2013, she served on the New York State Attorney General a notice of intention to file a claim against a state-owned hospital for misdiagnosis of a lacerated spleen. The notice of intention to file a claim stated that the claim arose on April 5, 2012. The claim, which was served on the Attorney General on March 31, 2014, stated that negligent treatment was administered to the decedent "from March 27, 2012 through the date of the decedent's death on April 3, 2013," and further stated that the claim "accrued between March 27, 2012 and April 3, 2012 at 5:05 a.m." An amended claim stating that the decedent died on April 3, 2012, was rejected by the defendant because it was unverified.

The defendant moved for summary judgment dismissing the claim as untimely and for lack of jurisdiction, and the claimant cross-moved for leave to amend the notice of intention to file a claim and claim to reflect the decedent's correct date of death. The Court of Claims granted the defendant's motion and denied the claimant's cross motion, and the claimant appeals.

While the notice of intention to file a claim was properly served within 90 days after the appointment of the claimant as administrator of the decedent's estate (see Court of Claims Act § 10[2] ), the notice of intention to file a claim failed to comply with Court of Claims Act § 11(b), which provides that the notice "shall state the time when and place where such claim arose [and] the nature of same." Neither the notice of intention to file a claim nor the claim correctly stated the time when the wrongful death claim arose, which is the date of the decedent's death (see Hernandez v. New York City Health & Hosps. Corp. , 78 N.Y.2d 687, 690, 578 N.Y.S.2d 510, 585 N.E.2d 822 ).

Since actions against the State require waiver of sovereign immunity and are in derogation of the common law, statutory requirements conditioning suit must be strictly construed (see Kiesow v. State of New York , 161 A.D.3d 1060, 78 N.Y.S.3d 192 ; Hunter v. State of New York , 72 A.D.3d 1030, 898 N.Y.S.2d 881 ). "[T]he State 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" ( Hargrove v. State of New York , 138 A.D.3d 777, 778, 29 N.Y.S.3d 495 [internal quotation marks omitted]; cf. Oliver v. State of N.Y. [SUNY] Health Science Ctr. at Brooklyn , 40 A.D.3d 719, 833 N.Y.S.2d 905 ; Matter of O'Shea v. State of New York , 36 A.D.3d 706, 829 N.Y.S.2d 561 ; Schwartzberg v. State of New York , 121 Misc.2d 1095, 469 N.Y.S.2d 836 [Ct. Cl.], affd 98 A.D.2d 902, 471 N.Y.S.2d 251 ; Sheinbaum v. State of New...