Young v. State

• Decision Date: 15 March 2011
• Parties: Glendora YOUNG, etc., appellant, v. STATE of New York (University Hospital of Brooklyn-Downstate Medical Center), respondent.
• Court: New York Supreme Court — Appellate Division

918 N.Y.S.2d 777
82 A.D.3d 972

Glendora YOUNG, etc., appellant,
v.
STATE of New York (University Hospital of Brooklyn-Downstate Medical Center), respondent.

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

March 15, 2011.

918 N.Y.S.2d 778

Fitzgerald & Fitzgerald, P.C., Yonkers, N.Y. (John E. Fitzgerald, John M. Daly, Eugene S.R. Pagano, Mitchell L. Gittin, and John J. Leen of counsel), for appellant.

Eric T. Schneiderman, Attorney General, Albany, N.Y. (Andrea Oser and Paul Groenwegen of counsel), for respondent.

RUTH C. BALKIN, J.P., RANDALL T. ENG, ARIEL E. BELEN, and PLUMMER E. LOTT, JJ.

In a claim to recover damages for wrongful death and medical malpractice, etc., the claimant appeals, as limited by her brief, from so much of an order of the Court of Claims (Schweitzer, J.), entered September 22, 2009, as denied that branch of her motion which was, in effect, to deem so much of a claim as sought to recover damages for her decedent's conscious pain and suffering arising from medical malpractice to have been timely filed and served, and granted that branch of the defendant's cross motion which was to dismiss so much of the claim as sought to recover damages for the decedent's conscious pain and suffering arising from medical malpractice.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In this wrongful death and medical malpractice claim, the Court of Claims properly determined that so much of the claim as sought to recover damages for the conscious pain and suffering of the claimant's decedent failed to comply with Court of Claims Act § 11(b) ( see Lepkowski v. State of New York, 1 N.Y.3d 201, 208, 770 N.Y.S.2d 696, 802 N.E.2d 1094; Rodriguez v. State of New York, 8 A.D.3d 647, 779 N.Y.S.2d 552; Cendales v. State of New York, 2 A.D.3d 1165, 1167, 770 N.Y.S.2d 174; Grumet v. State of New York, 256 A.D.2d 441, 442, 682 N.Y.S.2d 86). Since the statutory requirements of the Court of Claims Act must be strictly construed ( 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 at 206-207, 770 N.Y.S.2d 696, 802 N.E.2d 1094; Finnerty v. New York State Thruway Auth., 75 N.Y.2d 721, 722-723, 551 N.Y.S.2d 188, 550 N.E.2d 441), the failure of the claimant to sufficiently particularize the nature of her claim with respect to her decedent's alleged conscious pain and suffering constituted a jurisdictional defect mandating dismissal ( see Prisco v....