Holmes v. State

5 Misc. 3d 446, 782 N.Y.S.2d 571, 2004 N.Y. Misc. LEXIS 1456
CourtNew York Court of Claims
DecidedJune 30, 2004
DocketMotion No. M-67804
StatusPublished
Cited by4 cases

This text of 5 Misc. 3d 446 (Holmes v. State) 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
Holmes v. State, 5 Misc. 3d 446, 782 N.Y.S.2d 571, 2004 N.Y. Misc. LEXIS 1456 (N.Y. Super. Ct. 2004).

Opinion

OPINION OF THE COURT

Michael E. Hudson, J.

This motion relates to the death of Kevin Mark Holmes on April 13, 2003. His widow Gail A. Holmes was thereafter issued letters testamentary by the Surrogate’s Court of Onondaga County (Wells, J.) on June 24, 2003. Prior to the issuance of her letters of appointment, claimant attempted to file a “Verified Notice of Intention to Make Claim” with the Clerk of the Court of Claims by Federal Express overnight delivery, dated May 14, 2003. The movant also served her notice of intention upon the Attorney General, again by Federal Express, with delivery effected May 15, 2003. That notice of intention alleged negligence, recklessness and malpractice on the part of the State of New York, Roswell Park Cancer Institute Corporation, and its agents, [448]*448servants, employees and representatives in their treatment of the decedent on or about February 17, 2003, while a patient at Roswell Park. Mrs. Holmes subsequently filed this motion, initially seeking an order declaring that her notice of intention was timely and properly served, or a grant of leave to file and serve a late notice of intention to make claim, apparently in reliance upon Court of Claims Act § 10 (6). Claimant later supplemented her application on two occasions, first to request an order allowing the filing and service of a late claim under Court of Claims Act § 10 (6), and thereafter to seek leave to serve a late notice of claim pursuant to General Municipal Law § 50-e (5). The court notes that although the original notice of intention was directed to the State of New York and Roswell Park, the instant motion and proposed notice of claim also name Phillip McCarthy, M.D., as an anticipated defendant. For reasons that follow, the court will grant leave under General Municipal Law § 50-e and Public Authorities Law § 3567 (1) to serve a late notice of claim solely upon Roswell Park. The court will deny all other requests for relief.

The court will first discuss claimant’s applications as they relate to Dr. McCarthy. The jurisdiction of the Court of Claims is established by statute, and generally limited to claims for damages against the State, including suits that result from the torts of its officers and employees while acting in such capacities (Court of Claims Act § 9 [2]). That jurisdiction would also extend to claims against certain state authorities and other entities, again as established by statute. Under one such statute, Public Authorities Law § 3554 (1) and § 3567 (6), the venue for damage suits against Roswell Park resulting from the torts of its employees has been placed exclusively in this court. Conversely, it has long been recognized that the Court of Claims lacks the jurisdiction to hear claims against individual defendants, even where those persons are state employees (Smith v State of New York, 72 AD2d 937, 938 [1979]). For that reason claimant cannot pursue her claim directly against Dr. McCarthy in this court, notwithstanding support within the submissions that he was the attending physician who treated the decedent at Roswell Park, and that he may have been an employee of that hospital.

Next, the court will deny the application for leave to serve a late notice of intention to file a claim. Court of Claims Act § 10 (6) has established a single discretionary remedy for persons who fail to either serve a notice of intention or file and serve a claim proper within the time constraints set forth within [449]*449section 10. That remedy would be a late claim, and no allowance otherwise exists within the Court of Claims Act for the relief now sought. The lack of discretionary authority to grant leave with respect to a notice of intention was recognized in De Hart v State of New York (92 Misc 2d 631, 634-637 [1977]), wherein the Court of Claims (Moriarty, J.) provided persuasive justification for rejecting an earlier unreported decision to the contrary. Moreover, a grant of late service of a notice of intention would do little to promote the dual purposes such notices are intended to advance. Those purposes have been recognized as follows: to extend the time limitation for the commencement of suit beyond the 90-day limit otherwise set forth within Court of Claims Act § 10; and to enable the State to conduct a prompt investigation of a possible claim, in order to ascertain the existence and extent of its liability (see Schmidt v State of New York, 279 AD2d 62, 65-66 [2000]). With respect to the former, a late notice allowance would not so much work to extend a time limitation as it would to afford a remedial benefit to a claimant who already had missed the 90-day deadline. As to the latter, which has been recognized as the primary purpose of the notice requirement (see De Hart v State of New York, 92 Misc 2d at 637), the grant of a late notice of intention clearly could not facilitate the investigation of claims for the benefit of the State within the anticipated 90-day period following accrual. Lastly, recognition of such a remedy is unnecessary, since section 10 (6) expressly affords a similar form of relief to those who have failed to take timely action to pursue their claims.

Notwithstanding the above, the court will deny leave to file and serve a late claim under Court of Claims Act § 10 (6), based upon several differing considerations, and in part without prejudice to a subsequent application. Any late claim relief regarding Roswell Park would be governed by Public Authorities Law § 3567 (1), and by reference therein, General Municipal Law § 50-e, rather than Court of Claims Act § 10 (6) (Matter of Tyson v Roswell Park Cancer Inst. Corp., 4 Misc 3d 556 [Ct Cl 2003, Hudson, J.]).2 Although section 10 (6) does apply to a late claim application against the State, nothing within the submissions would support such relief. Roswell Park is a public corporation, specifically empowered to operate its hospital facility, and provide health and medical services to the public (Public Authorities Law § 3553 [1] [a]). The facility also has the [450]*450power to sue and be sued in its own name (Public Authorities Law § 3554 [1]; § 3567). Such public corporations enjoy an existence separate and apart from the State, an autonomy deliberately designed to allow them a freedom and flexibility not permitted to an ordinary state board, department or commission (see Matter of Plumbing, Heating, Piping & A.C. Contrs. Assn. v New York State Thruway Auth., 5 NY2d 420 [1959] [addressing autonomy of New York State Thruway Authority from State in contract bidding matters]). That autonomy has been recognized as ordinarily exempting the State from liability for the torts of an authority based upon respondeat superior grounds (see Malone v State of New York, 285 App Div 1218 [1955], affd 1 NY2d 837 [1956]; Pantess v Saratoga Springs Auth., 255 App Div 426 [1938]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 7 [1977]). Here, claimant has not set forth any basis for imposing liability against the State for the conduct that occurred at Roswell Park beyond its creation of that public corporation. Weighing the lack of apparent merit to any claim against the State, and the ready existence of alternative remedy, the court will now deny relief under section 10 (6), although without prejudice to a further application that affords some arguable basis for imposing liability against the State.

The court will grant claimant’s application to serve a late notice of claim upon Roswell Park.

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Related

Barrington v. New York
806 F. Supp. 2d 730 (S.D. New York, 2011)
Clark v. Roswell Park Cancer Institute Corp.
31 Misc. 3d 578 (New York State Court of Claims, 2010)
Gibson v. Roswell Park Cancer Institute Corp.
21 Misc. 3d 638 (New York State Court of Claims, 2008)
Prime Energy Solutions, Inc. v. State
20 Misc. 3d 750 (New York State Court of Claims, 2008)

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Bluebook (online)
5 Misc. 3d 446, 782 N.Y.S.2d 571, 2004 N.Y. Misc. LEXIS 1456, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holmes-v-state-nyclaimsct-2004.