211 A.D.3d 867
N.Y. App. Div.2022Background
- Plaintiff Kelly‑Ann Sacher sued the State in the Court of Claims for dental malpractice, alleging hot wax was negligently spilled on her face/mouth during treatment at SUNY Stony Brook.
- She served a verified notice of intention (NOI) on Jan. 9, 2017 stating the claim "arose on or about October 15, 2016, the last date of continuous treatment."
- The formal claim filed Oct. 16, 2018 asserted the burn occurred on Oct. 20, 2016 and alleged continuous treatment from Sept. 22 through Dec. 27, 2016.
- The State moved under CPLR 3211(a)(2) to dismiss for lack of subject‑matter jurisdiction, arguing the NOI failed to state the time when the claim arose as required by Court of Claims Act § 11(b).
- The Court of Claims granted the motion; the Appellate Division (majority) affirmed, holding the NOI was substantively deficient and thus jurisdictionally defective; Justice Barros dissented, arguing the approximate date was sufficiently definite for investigation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the NOI adequately stated the "time when" the claim arose under Court of Claims Act § 11(b) | NOI gave an approximate date ("on or about Oct. 15, 2016") and identified continuous treatment period; that was sufficiently definite | NOI failed to identify the actual date of the negligent act/injury (Oct. 20, 2016); § 11(b) requires the time when claim arose | Held: NOI was deficient for failing to specify the date the injury occurred; dismissal affirmed |
| Whether the continuous‑treatment doctrine affects the § 11(b) "time when" requirement | Continuous treatment tolls limitations and the alleged range in the NOI tied the claim to treatment period, so NOI was adequate | Continuous‑treatment tolls accrual but does not change the § 11(b) requirement; the "time when" is the date of the negligent act | Held: Continuous treatment is irrelevant to the substantive § 11(b) requirement; accrual/time when is the negligent act date |
| Whether "substantial compliance" suffices for the § 11(b) time/place pleading requirement | Substantial compliance is adequate; absolute exactness not required if State can investigate | Strict compliance required for substantive § 11(b) conditions because waiver of sovereign immunity is conditional | Held: Time/place requirement must be strictly satisfied for § 11(b); "substantial compliance" cannot excuse omission of the date |
| Whether the State must use its records to discover the missing date | State could and should use its own records to identify the exact date; claimant need not plead exact date | The Court of Claims Act obligates the claimant to allege the required time; State need not ferret out missing details | Held: State not required to assemble or discover information the claimant must allege; claimant bears burden |
Key Cases Cited
- Kolnacki v. State of New York, 8 N.Y.3d 277 (N.Y. Ct. of Appeals 2007) (the State's waiver of immunity is conditional; failure to satisfy Court of Claims Act conditions is jurisdictional)
- Lepkowski v. State of New York, 1 N.Y.3d 201 (N.Y. Ct. of Appeals 2003) (§ 11(b) requires the claimant to allege when the claim arose; State not obliged to ferret out information)
- McDermott v. Torre, 56 N.Y.2d 399 (N.Y. Ct. of Appeals 1982) (continuous‑treatment tolls limitations but accrual is defined by the original negligent act)
- Matter of Geneva Foundry Litig., 173 A.D.3d 1812 (App. Div. 4th Dept. 2019) (failure to specify dates relevant to alleged toxic exposure renders claim jurisdictionally defective)
- Heisler v. State of New York, 78 A.D.2d 767 (App. Div. 4th Dept. 1980) (NOI must be definite enough to permit prompt investigation; language invoking "substantial compliance")
- Criscuola v. State of New York, 188 A.D.3d 645 (App. Div. 2d Dept. 2020) (failure to comply with § 11(b) substantive requirements is jurisdictional)