Motion to dismiss claim alleging assault and medical malpractice is granted where assault cause of action was not served within time period set forth in Court of Claims Act 10 (3-b) and where medical malpractice cause of action fails to comply with pleading requirements of Court of Claims Act 11 (b).
|Claimant short name:||ELIAS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
By: Paul F. Cagino, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||July 19, 2017|
|See also (multicaptioned case)|
Defendant moves to dismiss the claim based upon claimant's failure to timely serve the claim as required by Court of Claims Act §§ 10 (3) and (3-b). Claimant has not appeared in opposition to the motion.
The claim states that it is for "assault" and "excessive force by staff" at Clinton Correctional Facility on July 31, 2011. The claim further alleges "malicious medical malpractice by a prison doctor without examination at initial time of incident to assess injuries or damages . . . sustained by the staff assault."
The claim was served on the Attorney General on September 20, 2012, one year and 51 days after the purported causes of action for assault and medical malpractice accrued.
Court of Claims Act § 10 requires that a claim to recover damages for personal injuries caused by the tortious conduct of an employee of the state, whether the defendant's conduct was intentional or unintentional, be served upon the attorney general within ninety days after the accrual of the claim, "unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such [unintentional tort] claim" (Court of Claims § 10 ) or "within one year after the accrual of such [intentional tort] claim" (Court of Claims § 10 [3-b]).
Courts have consistently held that "[a]s a condition of the State's limited waiver of sovereign immunity, those requirements [timely filing and service] are strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim" (Welch v State of New York, 286 AD2d 496, 497-498 [2d Dept 2001]; see Robinson v State of New York, 38 AD3d 1030 [3d Dept 2007]; Pizarro v State of New York, 19 AD3d 891, 892 [3d Dept 2005], lv denied 5 NY3d 717 ).
A notice of intention to file a claim was served on the Attorney General on September 26, 2011, within ninety days of accrual of the claim, affording claimant until July 31, 2012 to serve on the Attorney General his intentional tort cause of action for assault and until July 31, 2013 to serve on the Attorney General his unintentional tort cause of action for medical malpractice.
As set forth above, the claim was served on September 20, 2012, more than one year after the intentional tort cause of action alleging assault accrued and the claim is accordingly untimely, and is dismissed pursuant to Court of Claims Act 10 (3-b), with respect to the assault cause of action.
The claim's purported cause of action for medical malpractice is also dismissed, although it was served within the two year period after its accrual, because the medical malpractice cause of action, as set forth in both the notice of intention to file a claim and in the claim, fails to comply with the pleading requirements of Court of Claims Act § 11 (b):
"The claim shall state the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed. A claim for the appropriation by the state of lands, or any right, title or interest in or to lands shall include an inventory or itemized statement of fixtures, if any, for which compensation is claimed. The notice of intention to file a claim shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated."
A claim against the State is permissible only as a result of the State's waiver of sovereign immunity and the statutory requirements conditioning suit must therefore be strictly construed (Kolnacki v State of New York 8 NY3d 277, 280 ). The Kolnacki court noted that the requirements of section 11 (b) are "substantive conditions upon the State's waiver of sovereign immunity" (quoting Lepkowski v State of New York, 1 NY3d 201, 207 ) and that the failure to satisfy any of the conditions is a jurisdictional defect (Kolnacki, 8 NY3d at 280-281). The Kolnacki decision stresses that "nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary" (Kolnacki, 8 NY3d at 281).
The standard of review in assessing whether a claim complies with section 11 (b) as to adequately stating the nature of the claim is well-settled:
"What is required is not absolute exactness, but simply a statement made with sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances. The statement must be specific enough so as not to mislead, deceive or prejudice the rights of the State. In short, substantial compliance with section 11 is what is required . . . . Conclusory or general allegations of negligence that fail to adduce the manner in which the claimant was injured and how the State was negligent do not meet its requirements" (Heisler v State of State of New York, 78 AD2d 767, 768 [4th Dept 1980]; see Cendales v State of New York, 2 AD3d 1165, 1167 [3d Dept 2003]; Sega v State of New York, 246 AD2d 753, 755 [3d Dept 1998], lv denied 92 NY2d 805 ).
Here, neither the notice of intention to file a claim nor the claim itself allege sufficiently definite facts to enable the defendant to investigate its liability under the circumstances. Rather, both the notice of intention to file a claim and the claim simply state in a single conclusory sentence that defendant in some manner committed medical malpractice. Most glaringly, neither the notice of intention to file a claim nor the claim identifies any injury (such as an aggravation of the injuries allegedly caused by the alleged assault) caused by the alleged failure of "a prison doctor" to examine claimant "at initial time of incident." The solitary allegation of the notice of intention to file a claim and the claim thus fails "to adduce the manner in which the claimant was injured [by the alleged malpractice] and how the State was negligent" (Heisler, 78 AD2d at 768).
The defendant's motion to dismiss is granted and the claim is dismissed.
July 19, 2017
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Notice of Motion to Dismiss, filed May 15, 2017;
2. Affirmation of Paul F. Cagino, dated May 15, 2017, and annexed exhibits.