Claim is dismissed pursuant to Court of Claims Act § 11 (b).
|Claimant short name:||FERGUSON|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DIANE L. FITZPATRICK|
|Claimant's attorney:||GREGORY FERGUSON
|Defendant's attorney:||ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Sean B. Virkler, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||February 5, 2018|
|See also (multicaptioned case)|
Defendant brings a motion seeking dismissal of the claim arguing it is untimely and fails
to comply with Court of Claims Act section 11 (b). Claimant opposes the motion.
On February 26, 2015, Claimant filed a claim with the Clerk of the Court. Claimant served Defendant with a copy of the claim on May 5, 2015. Defendant interposed an answer to the claim asserting three affirmative defenses including a defense of lack of subject matter jurisdiction and personal jurisdiction for failing to serve a claim or notice of intention within 90 days of the date of accrual in accordance with Court of Claims Act sections 10 (3), (3-b) and 11 (a) (i).
The substance of the claim dated February 22, 2015 is handwritten and difficult to read. It alleges that Claimant, an inmate in the custody of the State, signed a prison contract to be taken to an outside hospital at some time for surgery for his right knee for a "Baker's cyst injury."(1) Claimant alleges that the doctor at Riverview Correctional Facility delayed the required surgery, refusing to send Claimant to see an outside doctor or to an outside hospital from 2011 until Claimant was finally transferred out of that facility in May 2013. Claimant was transferred to Bare Hill Correctional Facility and, on December 24, 2014 he finally had the surgery at Alice Hyde Medical Center. Claimant alleges that he "file"[ed] a notice of intention in 2013 for cruel and unusual punishment. The delay allegedly caused the right knee injury to never heal properly after the surgery resulting in permanent pain.
Claimant alleges that the doctors at Riverview Correctional Facility knew of Claimant's injury and recklessly ignored and disregarded the seriousness of it and his pain and suffering. Attached to his claim is an undated notice of intention to file a claim, another claim also dated February 22, 2015, with similar allegations also with a similar attached, also undated notice of intention to file a claim. Neither notices of intention has a signature page or verification. The notices of intention to file a claim assert that on June 17, 2011, Claimant had an MRI and X-ray ordered by Auburn Correctional Facility. These tests "proved" that Claimant had a Baker's cyst injury in his right knee which caused Claimant constant and extreme pain. Auburn Correctional Facility scheduled an outside orthopedic appointment for Claimant on August 9, 2011, confirming the Baker's cyst. On October 11, 2011, Claimant was transferred to Riverview Correctional Facility. Claimant treated with the same doctor at Riverview Correctional Facility between 2011 until 2013 using sick call for the constant pain in his right knee. No further information is provided in the notice of intention. The attached second notice of intention is very similar.
Defendant, by this motion, makes two arguments for dismissal. First, Defendant argues that the first document with which it was served was the claim on May 5, 2015. Since the substance of the claim involves Claimant's allegations of improper medical care - failure to permit a necessary surgery to be done on his right knee in a timely manner - a notice of intention or claim had to be served, or filed and served within 90 days of the date of accrual (see Court of Claims Act §§ 10 , [3-b]). The only dates set forth in the claim are the date Claimant was sent to Riverview Correctional Facility, October 2011, the date Claimant was transferred out of Riverview Correctional Facility, May 2013, and the date that Claimant had the surgery on his knee on December 24, 2014, when he was housed at Bare Hill Correctional Facility. Using any of those dates, Defendant argues, the claim served on the Attorney General on May 5, 2015 is untimely.
Defendant's second argument is that the claim fails to state an actual date of accrual and fails to set forth any particularization of the State's alleged wrongdoing. The lack of specificity, Defendant argues, establishes a failure to comply with Court of Claims Act section 11 (b).
Claimant, in opposition, argues that his claim is not untimely because of the continuous treatment doctrine, because he treated with the same doctor from October 11, 2011 until May 7, 2013.(2) Claimant alleges that he served the Attorney General with a notice of intention within 90 days from the date he was transferred out of Riverview Correctional Facility. Claimant attaches to his answer in response to the State of New York Attorney General's motion to Claimant's claim, a copy of a return receipt for certified mail indicating that the Office of the Attorney General received something from Claimant on August 5, 2013.
Defendant, in reply, submits the affidavit(3) of Debra Mantell, Office Assistant in the Claims Bureau in Albany, who states that she is familiar with the digital case management system used in the Office of the Attorney General to record notices of intention to file a claim, and claims. In reviewing the system, Ms. Mantell identified two documents received and recorded in the system by Claimant, a notice of intention received on May 5, 2015, and a claim received the same day. After receiving Claimant's "Answer Response" with the certified mail receipt, the Assistant Attorney General acknowledges that a notice of intention was received from Claimant on August 5, 2013, and provides a copy of it.(4) Defendant argues that the notice of intention received on that date bears no resemblance to the notice of intention attached to the filed and served claim and, in fact it is argued, bears so little connection to the documents served on May 5, 2015, that no recording link was made in the Attorney General's digital database. A review of that notice of intention, oddly reflects that is stamped as received in the "NYS Office of the Attorney General Claims Bureau" on August 5, 2013, yet, the verification attached to the notice of intention is sworn to on August 21, 2013. There are two additional received stamps, one of the "NYS Office of the Attorney General Claims Bureau" dated August 28, 2013, and one from the "NYS Department of Law Utica Regional Office" dated September 6, 2013. There is no explanation for the discrepancy between the first date received, the date verified, and the second receipt on August 28th.
This notice of intention from 2013 is also handwritten, difficult to read, and provides only a paragraph indicating that on May 6, 2013, Claimant was authorized to be transferred from Riverview Correctional Facility to Auburn Correctional Facility after Riverview had the Claimant sign a "contract" in 2012 to be transferred to an outside hospital for a Baker's cyst injury on his right knee. He alleges that he was never taken to an outside hospital for his right knee. No further information is provided.
A claim against the State, for either intentional or negligent wrongdoing, must be served and filed within 90 days of the date of accrual, unless a notice of intention is served within the same time frame, then the time to file and serve the claim is extended to one year from the date of accrual for an intentional cause of action and two years for an unintentional or negligent cause of action (Court of Claims Act §§ 10  or [3-a]).
From the claim filed on February 26, 2015 and served on May 5, 2015, Claimant appears to be alleging the medical malpractice or negligence of a doctor at Riverview Correctional Facility who failed to send Claimant to an outside hospital for evaluation and care of a Baker's cyst on his right knee. Claimant apparently continued to see this doctor throughout his confinement at Riverview Correctional Facility between 2011 and 2013. Claimant makes no other allegations of wrongdoing at any other facility, seemingly indicating that the wrongdoing occurred at Riverview. Claimant was transferred out of Riverview on May 6, 2013 or May 7, 2013. Based upon these facts, Claimant needed to file and serve a claim or serve a notice of intention within 90 days or by August 4 or 5, 2013.
A notice of intention was served on August 5, 2013. If he was released from Riverview on May 6, this would have been one day too late. Even if he was not released until May 7, and making the 2013 notice of intention timely, it must also substantively comply with the requirements of Court of Claims Act section 11 (b) in order to be jurisdictionally effective to extend the time for filing and service of the claim under Article 10 of the Court of Claims Act. The copy of the notice of intention Defendant provided sets forth no clear date of accrual, describes no specific wrongdoing of the State, other than not sending Claimant to an outside hospital, and provides no indication of how Claimant was injured or damaged.
A notice of intention need not meet the statutory requirements with "[a]bsolute exactness," but Court of Claims Act section 11 (b) requires that a notice of intention, like a claim, set forth the time when and the place where such claim arose, the nature of the same, and the items of damage or injuries incurred (Heisler v State of New York, 78 AD2d 767, 767-768 [4th Dept 1980]). The guiding rule is that there must be a statement made with sufficient definiteness to enable the State to investigate the allegations promptly and ascertain its liability under the circumstances (Heisler, 78 AD2d at 767-768 [4th Dept 1980]; see also Lepkowski v State of New York, 1 NY3d 201, 207 ; Grumet v State of New York, 256 AD2d 441 [2d Dept 1998]; Sega v State of New York, 246 AD2d 753 [3d Dept 1998]). A failure to meet these requirements warrants dismissal for lack of subject matter jurisdiction (Kolnacki v State of New York, 8 NY3d 277, 281 ; Lepkowski, 1 NY3d at 208; Signature Health Ctr., LLC v State of New York, 42 AD3d 678 [3d Dept 2007]). "A notice of intention will be sufficient if it provides the State with fair and timely notice of those facts necessary to conduct a meaningful investigation." (Cannon v State of New York, 163 Misc 2d 623, 626 [Ct Cl 1994]; Cendales v State of New York, 2 AD3d 1165, 1167 [3d Dept 2003]; Schwartzberg v State of New York, 121 Misc 2d 1095, 1100 [Ct Cl 1983], affd 98 AD2d 902 [3d Dept 1983]). "In short substantial compliance with section 11 is what is required." (Heisler, 78 AD2d at 767).
Here, the notice of intention fails to set forth necessary information as to what the Department of Corrections and Community Supervision did wrong, when the wrongdoing occurred, and how it injured or caused damage to Claimant. No meaningful inquiry could be made into the allegations, since it is not clear what the State did wrong: did the doctor fail to properly treat Claimant, or did a doctor fail to make a proper referral, or was it a ministerial error that Claimant was not timely scheduled for an outside appointment, or transportation was not properly or timely arranged? As well as how was Claimant injured or damaged? (see Wilson v State of New York, 61 AD3d 1367 [4th Dept]; Kelly v State of New York, UID No. 2015-038-569 [Ct Cl, DeBow, J., Oct. 20, 2015]). As a result, the August 5, 2013 notice of intention, even if timely, did not extend Claimant's time for filing and serving a claim under Court of Claims Act section 10. Using any date set forth in the notice of intention or claim served on May 5, 2015, renders these documents untimely, because service was not within 90 days of accrual.
Accordingly, based upon the foregoing, Defendant's motion is GRANTED and the claim is DISMISSED.
February 5, 2018
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court considered the following in deciding this motion:
1) Notice of Motion.
2) Affirmation of Sean B. Virkler, Esquire, in support, with exhibits attached thereto.
3) Answer Response of Gregory Ferguson, verified November 17, 2017, in opposition, with attachments thereto.
4) Reply Affirmation of Sean B. Virkler, Esquire, in support, with exhibits attached thereto.
1. Claim ¶ 3.
2. The date in the notice of intention is May 6, 2013. See Defendant's reply affidavit, Exhibit 3.
3. See Exhibit B.
4. See Exhibit C.