| Young v State of New York (Univ. Hosp. of Brooklyn-Downstate Med.Ctr.) |
| 2011 NY Slip Op 02003 [82 AD3d 972] |
| March 15, 2011 |
| Appellate Division, Second Department |
| Glendora Young, as Administratrix of the Estate of Cardel Wallace,Deceased, Appellant, v State of New York (University Hospital of Brooklyn-DownstateMedical Center), Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany, N.Y. (Andrea Oser and Paul Groenwegenof counsel), for respondent.
In a claim to recover damages for wrongful death and medical malpractice, etc., the claimantappeals, 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 somuch of a claim as sought to recover damages for her decedent's conscious pain and sufferingarising from medical malpractice to have been timely filed and served, and granted that branch ofthe defendant's cross motion which was to dismiss so much of the claim as sought to recoverdamages 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 properlydetermined that so much of the claim as sought to recover damages for the conscious pain andsuffering of the claimant's decedent failed to comply with Court of Claims Act § 11 (b) (see Lepkowski v State of New York, 1NY3d 201, 208 [2003]; Rodriguezv State of New York, 8 AD3d 647 [2004]; Cendales v State of New York, 2 AD3d 1165, 1167 [2003];Grumet v State of New York, 256 AD2d 441, 442 [1998]). Since the statutoryrequirements of the Court of Claims Act must be strictly construed (see Kolnacki v State of New York, 8NY3d 277, 280 [2007]; Lepkowski v State of New York, 1 NY3d at 206-207;Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]), the failure ofthe claimant to sufficiently particularize the nature of her claim with respect to her decedent'salleged conscious pain and suffering constituted a jurisdictional defect mandating dismissal (see Prisco v State of New York, 62AD3d 978, 979 [2009]; Czynski vState of New York, 53 AD3d 881, 883 [2008]; Robin BB. v State of New York, 56 AD3d 932, 933 [2008]).Accordingly, the Court of Claims properly granted that branch of the defendant's cross motionwhich was to dismiss so much of the claim as sought to recover damages for the allegedconscious pain and suffering of the claimant's decedent.
In determining whether to deem a late claim to have been timely served and filed, [*2]the Court of Claims is required to consider, among several otherfactors, whether the delay in filing the claim was excusable and whether the State of New Yorkhad notice of the essential facts constituting the claim (see Court of Claims Act §10 [6]). However, in light of our determination that so much of the claim as sought to recoverdamages for conscious pain and suffering does not comply with Court of Claims Act § 11(b), we need not address the claimant's remaining contentions, including her contention that theCourt of Claims improvidently exercised its discretion in denying that branch of her motionwhich was, in effect, to deem that portion of the claim to have been timely filed and served.Balkin, J.P., Eng, Belen and Lott, JJ., concur.