Sacher v. State

• Decision Date: 14 December 2022
• Docket Number: 2020–07352,Claim No. 132143
• Citation: 211 A.D.3d 867,180 N.Y.S.3d 245
• Parties: Kelly–Ann SACHER, appellant, v. STATE of New York, respondent.
• Court: New York Supreme Court — Appellate Division

211 A.D.3d 867

180 N.Y.S.3d 245

Kelly–Ann SACHER, appellant,

v.STATE of New York, respondent.

2020–07352

Claim No. 132143

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

Submitted—May 6, 2022

December 14, 2022

Dell & Dean, PLLC (Joseph G. Dell and Mischel & Horn, P.C., New York, NY [Scott T. Horn and Andrew J. Fisher ], of counsel), for appellant.

Letitia James, Attorney General, New York, NY (Anisha S. Dasgupta and David Lawrence III of counsel), for respondent.

BETSY BARROS, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

In a claim to recover damages for dental malpractice, the claimant appeals from an order of the Court of Claims (Maureen T. Liccione, J.), dated July 30, 2020. The order granted the defendant's motion pursuant to CPLR 3211(a)(2) to dismiss the claim for lack of subject matter jurisdiction.

ORDERED that the order is affirmed, with costs.

The claimant served the defendant with a notice of intention to file a claim dated January 9, 2017, which alleged that the claimant was injured when her mouth and lips were burned during the course of her treatment as a patient at a particular address where the defendant operated a school of dental medicine. The notice of intention to file a claim stated that "[t]he claim arose on or about October 15, 2016, the last date of continuous treatment and prior to said date."

In the subsequent claim, dated October 16, 2018, the claimant stated that she was injured on October 20, 2016, when hot wax was negligently spilled on her face and mouth while an employee of the defendant was attempting to make a wax mold for dentures. No other specific acts of negligence were alleged. The claim alleged that the claim arose "during a continuous course of treatment from on or about September 22, 2016 through to on or about December 27, 2016 with the [hot wax] burn occurring on or about October 20, 2016," and further alleged that the claim arose "[o]n or about September 22, 2016 when [the claimant] first sought treatment ... through a continuous course of treatment to December 27, 2016 including October 20, 2016 the day the burn occurred."

The defendant moved pursuant to CPLR 3211(a)(2) to dismiss the claim for lack of subject matter jurisdiction. In the order appealed from, the Court of Claims determined that the claimant's notice of intention to file a claim failed to adequately set forth the time when the claim arose, and that this failure constituted a jurisdictional defect. Accordingly, the court granted the defendant's motion. The claimant appeals. We affirm.

Section 8 of the Court of Claims Act provides that "[t]he state hereby waives its immunity from liability and action and hereby assumes liability and consents to have the same determined in accordance with the same rules of law as applied to actions in the supreme court ... provided the claimant complies with the limitations of this article" (referencing id. art II, §§ 8–12; see Kolnacki v. State of New York, 8 N.Y.3d 277, 280, 832 N.Y.S.2d 481, 864 N.E.2d 611 ; Lepkowski v. State of New York, 1 N.Y.3d 201, 206, 770 N.Y.S.2d 696, 802 N.E.2d 1094 ).

Accordingly, "[t]he State's waiver of immunity from suits for money damages is not absolute, but rather is contingent upon a claimant's compliance with specific conditions placed on the waiver by the Legislature" ( Lepkowski v. State of New York, 1 N.Y.3d at 206, 770 N.Y.S.2d 696, 802 N.E.2d 1094 ). In this regard, "[t]he Act contains several conditions that must be met in order to assert a claim against the State" ( Kolnacki v. State of New York, 8 N.Y.3d at 280, 832 N.Y.S.2d 481, 864 N.E.2d 611 ). The conditions are set forth in Court of Claims Act, art II, §§ 8–12 (see id. § 8 ). "The failure to satisfy any of the conditions is a jurisdictional defect" ( Kolnacki v. State of New York, 8 N.Y.3d at 281, 832 N.Y.S.2d 481, 864 N.E.2d 611 ; see Criscuola v. State of New York, 188 A.D.3d 645, 645, 134 N.Y.S.3d 67 ; Hargrove v. State of New York, 138 A.D.3d 777, 777, 29 N.Y.S.3d 495 ).

Section 10(3) of the Court of Claims Act sets forth time limitations for asserting "[a] claim to recover damages ... for personal injuries caused by ... negligence." Such a claim "shall be filed and served upon the attorney general within [90] days after the accrual of such claim" ( id. ). However, if the claimant serves "a written notice of intention to file a claim" within 90 days after the accrual of the claim, "the claim shall be filed and served upon the attorney general within two years after the accrual of such claim" ( id. ; see Criscuola v. State of New York, 188 A.D.3d at 645, 134 N.Y.S.3d 67 ; Kiesow v. State of New York, 161 A.D.3d 1060, 1061, 78 N.Y.S.3d 192 ; Hargrove v. State of New York, 138 A.D.3d at 777, 29 N.Y.S.3d 495 ). "The failure to comply with the filing deadlines of Court of Claims Act § 10 is a jurisdictional defect which compels the dismissal of the claim" ( Bennett v. State of New York, 106 A.D.3d 1040, 1041, 966 N.Y.S.2d 479 ; see Kiesow v. State of New York, 161 A.D.3d at 1062, 78 N.Y.S.3d 192 ; Local 851 of Intl. Bhd. of Teamsters v. State of New York, 36 A.D.3d 672, 673, 828 N.Y.S.2d 200 ; Welch v. State of New York, 286 A.D.2d 496, 497–498, 729 N.Y.S.2d 527 ).

Section 11(b) of the Court of Claims Act sets forth the substantive contents that must be included in a valid claim. "The claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed" ( Kolnacki v. State of New York, 8 N.Y.3d at 280, 832 N.Y.S.2d 481, 864 N.E.2d 611 [emphasis omitted]). It has been observed that " Court of Claims Act § 11(b) requires that the ... claim state, inter alia, when the claim ‘arose,’ as opposed to when it accrued" ( Gang v. State of New York, 177 A.D.3d 1300, 1303, 113 N.Y.S.3d 423 ; compare Court of Claims Act § 10[3] [referencing "the accrual of such claim"] with Court of Claims Act § 11[b] [referencing "the time when ... such claim arose"]).

As relevant here, Court of Claims Act § 11(b) also sets forth the substantive contents that must be included in a valid notice of intention to file a claim: "The notice of intention to file a claim shall set forth the same matters [as a claim] except that the items of damage or injuries and the sum claimed need not be stated." Accordingly, as with a claim, "[a] notice of intention to file a claim pursuant to Court of Claims Act § 11(b) must set forth [1] the time and [2] place the claim arose, and [3] the nature of the claim" ( Rodriguez v. State of New York, 8 A.D.3d 647, 647, 779 N.Y.S.2d 552 ; see Criscuola v. State of New York, 188 A.D.3d at 645–646, 134 N.Y.S.3d 67 ; Hargrove v. State of New York, 138 A.D.3d at 777, 29 N.Y.S.3d 495 ). The statute further provides that both "[t]he claim and [the] notice of intention to file a claim shall be verified in the same manner as a complaint in an action in the supreme court" ( Court of Claims Act § 11[b] ).

The Court of Appeals has made it "clear that all of the requirements in section 11(b) are ‘substantive conditions upon the State's waiver of sovereign immunity’ " ( Kolnacki v. State of New York, 8 N.Y.3d at 280, 832 N.Y.S.2d 481, 864 N.E.2d 611, quoting Lepkowski v. State of New York, 1 N.Y.3d at 207, 770 N.Y.S.2d 696, 802 N.E.2d 1094 ). The failure to satisfy any of the conditions of Court of Claims Act § 11(b) "is a jurisdictional defect" ( Kolnacki v. State of New York, 8 N.Y.3d at 281, 832 N.Y.S.2d 481, 864 N.E.2d 611 ; see Criscuola v. State of New York, 188 A.D.3d at 645, 134 N.Y.S.3d 67 ; Hargrove v. State of New York, 138 A.D.3d at 777, 29 N.Y.S.3d 495 ). Such a defect in a claim, or in a notice of intention to file a claim, "may not be cured by amendment" ( Matter of DeMairo v. State of New York, 172 A.D.3d 856, 857, 100 N.Y.S.3d 362 ; see Nasir v. State of New York, 41 A.D.3d 677, 677, 836 N.Y.S.2d 886 ).

On this appeal, the claimant contends that the Court of Claims erred when it determined that her notice of intention to file a claim failed to adequately state "the time when ... [the] claim arose" ( Court of Claims Act § 11[b] ). This contention is without merit.

As relevant here, "[t]o adequately plead when the claim arose ... the claimant must allege the ‘date ... of the mishap’ " ( Matter of Geneva Foundry Litig., 173 A.D.3d 1812, 1813, 105 N.Y.S.3d 648, quoting Heisler v. State of New York, 78 A.D.2d 767, 768, 433 N.Y.S.2d 646 ). "If the claimant fails to specify the dates relevant to the elements of the claim or provides only a broad range of dates, the claim is jurisdictionally defective and properly dismissed" ( Matter of Geneva Foundry Litig., 173 A.D.3d at 1813–1814, 105 N.Y.S.3d 648 ; see Lepkowski v. State of New York, 1 N.Y.3d at 207, 770 N.Y.S.2d 696, 802 N.E.2d 1094 ).

Here, the claimant's notice of intention to file a claim alleged that "[t]he claim arose on or about October 15, 2016, the last date of continuous treatment and prior to said date." Her claim subsequently alleged that the claim arose "[o]n or about September 22, 2016 when [the claimant] first sought treatment ... through a continuous course of treatment to December 27, 2016 including October 20, 2016 the day the burn occurred."

The ranges of dates alleged by the claimant were identified as periods during which she allegedly received continuous treatment. However, the continuous course of treatment doctrine does not serve to affect an accrual date for a cause of action or a claim, and there is no basis to conclude that it would have any similar affect on the time when the claim "arose" for the purposes of this appeal ( Court of Claims Act § 11[b] ).

Indeed, the Court of Appeals has clarified that the continuous treatment doctrine does not "delay[ ] the action's accrual" ( McDermott v. Torre, 56 N.Y.2d 399, 407, 452 N.Y.S.2d 351, 437 N.E.2d 1108 ). "Rather than define the action's accrual in terms of the [continuous treatment] doctrine, [accru...