Gibson v. Roswell Park Cancer Institute Corp.

21 Misc. 3d 638, 864 N.Y.S.2d 742
CourtNew York Court of Claims
DecidedSeptember 9, 2008
DocketMotion No. M-75069
StatusPublished
Cited by1 cases

This text of 21 Misc. 3d 638 (Gibson v. Roswell Park Cancer Institute Corp.) is published on Counsel Stack Legal Research, covering New York Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gibson v. Roswell Park Cancer Institute Corp., 21 Misc. 3d 638, 864 N.Y.S.2d 742 (N.Y. Super. Ct. 2008).

Opinion

OPINION OF THE COURT

Michael E. Hudson, J.

Claimant has moved under Court of Claims Act § 10 (8) to treat a timely notice of claim as a claim against Roswell Park Cancer Institute Corporation.

This application raises the issue of whether the provisions of Court of Claims Act § 10 (8) can apply in litigation against Roswell Park Cancer Institute Corporation. For reasons that follow, the court holds that relief under section 10 (8) is inapplicable to claims against that public corporation, notwithstanding that the venue for such litigation has been placed in the Court of Claims.

Claimant seeks to recover for injuries allegedly sustained in a fall at Roswell Park on December 4, 2006, while she was visiting a patient at the hospital facility. She served a notice of claim upon counsel for the hospital and the Attorney General on February 28, 2007, and identified Roswell Park as the entity against which she intended to make a claim {see affidavit of Laura C. Doolittle, exhibit A [notice of claim]). On that same date claimant also served a separate “notice of intention”2 upon the Attorney General {see Doolittle affidavit, exhibit C [notice of intention]), which set forth her intention to sue the State of New York, but otherwise mirrored the substantive allegations of negligence and injury set forth in her notice of claim against Roswell Park. Thereafter, on August 29, 2007, claimant submitted to an examination under oath by an attorney for Roswell Park, pursuant to General Municipal Law § 50-h and Public Authorities Law § 3567 (2) {see Doolittle affidavit, exhibit D [transcript of examination under oath]). Ms. Gibson took no [640]*640further action to pursue litigation against either entity until June 9, 2008, when she filed this motion.3

Having failed to commence litigation against Roswell Park within the one-year-and-90-day time limitation period set forth within Public Authorities Law § 3567 (1), claimant now moves to have the court deem the timely notice of claim that she previously served upon Roswell Park and the Attorney General to constitute a claim against the hospital.4 In so moving, Ms. Gibson relies upon Court of Claims Act § 10 (8) (a), which allows a claimant who timely serves a notice of intention, but fails to timely serve or file a claim, to seek permission of the court to treat the notice of intention as a claim. The hospital opposes the motion on the grounds that it is time-barred, and seeks a remedy that is unauthorized for claims against Roswell Park in light of the unique manner by which claims against the hospital are commenced in the Court of Claims. On consideration the court must deny claimant’s application.

Preliminarily, the court rejects Roswell Park’s assertion that the motion under section 10'(8) (a) is itself untimely. That statute provides inter alia that “[t]he 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” (Court of Claims Act § 10 [8] [a]). Pursuant to CPLR article 2, and specifically CPLR 214 (5), the statute of limitations in an action to recover damages against a citizen of the state for personal injury would be three years from accrual. The court understands that Public Authorities Law § 3567 (1) requires that an action against Roswell Park to recover for negligence must be commenced within one year and 90 days of accrual, and that CPLR 201 acknowledges that the time limitations within CPLR article 2 are subject to such differing times prescribed by law. Nevertheless, section 10 (8) (a) expressly [641]*641provides that the measure of timeliness for such applications corresponds to statutes of limitations for suits against private citizens of the state, rather than municipalities, public corporations or the State itself. Thus, to the extent section 10 (8) might apply herein, claimant’s motion would be timely, since it clearly has been made within three years of the December 4, 2006 accrual date.

On the merits, however, the application must fail. The jurisdiction of the Court of Claims is not limited to damage claims against the State itself, but also extends to such entities as the New York State Thruway Authority (see Public Authorities Law § 361-b), City University of New York (CUNY) (see Education Law § 6224 [4]), and Olympic Regional Development Authority (ORDA) (see Public Authorities Law § 2622).5 In those instances the Legislature has provided, with minor variations in verbiage, that litigation would proceed in the same manner and to the extent provided by and subject to the provisions of the Court of Claims Act with respect to claims against the State (see Public Authorities Law §§ 361-b [Thruway Authority], 2622 [4] [ORDA]; Education Law § 6224 [4] [CUNY]). In contrast, when the Legislature enacted Public Authorities Law article 10-C, title 4, the “Roswell Park Cancer Institute Corporation Act,” effective October 14, 1997, it fixed the venue for contract, tort and wrongful death claims against the hospital in the Court of Claims, but without expressly providing that such litigation would be subject to the provisions of the Court of Claims Act, or proceed in the same manner as a claim against the State (see Public Authorities Law § 3554 [1]; § 3567 [1], [6]). Instead, in addressing commencement procedures for tort and wrongful death claims, the Legislature directed that the notice of claim provisions of General Municipal Law § 50-e, and related pleading and timing matters otherwise foreign to the practice in this court, would control the manner by which litigation against the hospital is initiated (see Public Authorities Law § 3567 [1]; § 2980 [by reference]).

Section 3567 (1) compels the service of a notice of claim upon Roswell Park within the time set by and in compliance with General Municipal Law § 50-e as a condition precedent to the pursuit of tort litigation. That section further directs that upon [642]*642commencement the pleading6 recite that at least 30 days had elapsed following the service of the notice of claim, and that adjustment or payment of the claim had been neglected or refused. The statute also sets forth a one-year-and-90-day time limitation for the commencement of litigation. In addressing wrongful death claims, section 3567 (1) requires a litigant to comply with the notice of claim and time limitations set forth within Public Authorities Law article 9, title 11 (§ 2980 et seq.), which similarly compels the service of a notice of claim pursuant to General Municipal Law § 50-e as a condition precedent to the pursuit of a wrongful death claim against the hospital. Public Authorities Law § 2980, and by reference General Municipal Law § 50-e (1), require that the notice of claim is to be served within 90 days of the appointment of an estate representative, while Public Authorities Law § 2981 directs that litigation commence within two years of the decedent’s death.

The commencement methodology for tort and wrongful death claims against Roswell Park varies significantly from those set forth within Court of Claims Act § 10 (2), (3), (3-a) and (3-b), and which otherwise control the time limitations for filing such claims in this court.7

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Related

Clark v. Roswell Park Cancer Institute Corp.
31 Misc. 3d 578 (New York State Court of Claims, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
21 Misc. 3d 638, 864 N.Y.S.2d 742, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gibson-v-roswell-park-cancer-institute-corp-nyclaimsct-2008.