New York State Court of Claims

New York State Court of Claims
ELLEBY v. THE STATE OF NEW YORK, # 2018-045-019, Claim No. 130715, Motion No. M-91709

Synopsis

Defendant's motion to dismiss pro se inmate claim for failure to state a cause of action and failure to meet the requirements of CCA 11 (b).

Case information

UID: 2018-045-019
Claimant(s): TAYE L. ELLEBY
Claimant short name: ELLEBY
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 130715
Motion number(s): M-91709
Cross-motion number(s):
Judge: GINA M. LOPEZ-SUMMA
Claimant's attorney: Taye Elleby Pro Se
Defendant's attorney: Hon. Barbara D. Underwood, Attorney General
By: Michael Rizzo, Assistant Attorney General
Third-party defendant's attorney:
Signature date: June 1, 2018
City: Hauppauge
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

The following papers were read and considered by the Court on this motion: Defendant's Notice of Motion; Defendant's Affirmation in Support with annexed Exhibit A; Claimant's Claimant's "Affidavit" filed January 31, 2018 and Claimant's Affidavit filed February 1, 2018.

Defendant, the State of New York, has brought this motion pursuant to Civil Practice Law and Rules 3211 (a) (2) and (7) as well as Court of Claims Act (CCA) 8, 9, 10 and 11 (b) seeking an order dismissing the claim in this matter.

Defendant argues that the claim should be dismissed because it does not comply with the requirements of Court of Claims Act 11 (b).

Court of Claims Act 11 (b) requires in pertinent part that "[t]he claim shall state the time when and place where such claim arose, the nature of same, [and] the items of damage or injuries claimed to have been sustained." These requirements are jurisdictional in nature and must be strictly complied with in order to properly initiate an action against defendant (Kolnacki v State of New York, 8 NY3d 277 [2007]). "The Court of Claims Act does not require [defendant] to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski v State of New York, 1 NY3d 201, 208 [2003]).

Claimant alleges in his claim that at some point in 2013 he was sent to Rikers Island where he complained about unusual bumps on his genitals. He requested medical tests to determine whether he had genital herpes. The physicians at Rikers Island informed claimant that they only performed the test when inmates first arrived at Rikers Island and gave him hydrocortisone cream. Claimant was transferred to Downstate Correctional Facility and then to Coxsackie Correctional Facility where he requested the test for three years until it was finally administered by Dr. Lee. The test was positive for genital herpes and claimant was prescribed medicine for the condition. At some point claimant was transferred to Shawangunk Correctional Facility where he was unable to get a refill of his medication from the medical staff at the facility. Claimant was then transferred to Elmira Correctional Facility where he also unable to receive his medication for at least three months.

Defendant initially contends that the claim lacks sufficient specificity regarding the time when the claim accrued. Claimant states in his claim that his request for a herpes test was first denied sometime in 2013 while he was incarcerated at Rikers Island.

It must be noted that to the extent claimant is attempting to put forth claims against defendant based upon actions taken while he was incarcerated at Rikers Island such claims are outside the jurisdiction of the Court of Claims (see Court of Claims Act 9). Rikers Island is a facility owned and operated by the City of New York (Ogle v State of New York, 191 AD2d 878, 879 [3d Dept 1993]).

Claimant states in his claim that from 2014 through 2016 while he was incarcerated at Downstate Correctional Facility and then Coxsackie Correctional Facility he was denied medical attention for his condition. Claimant failed to provide the date when Dr. Lee administered the herpes test and when Dr. Lee prescribed herpes medication for claimant. Claimant also failed to provide the date when he was transferred to Shawangunk Correctional Facility and was subsequently seen by a physician at the facility who refused to prescribe any further herpes medication.

Claimant's failure to provide an accurate date of accrual in the claim deprives the Court of jurisdiction over this matter. Accordingly, the claim must be dismissed on this ground (Lepkowski v State of New York, 1 NY3d 201, 208 [2003]; Prisco v State of New York, 62 AD3d 978 [2d Dept 2009]; Czynski v State of New York, 53 AD3d 881 [3d Dept 2008]).

The claim in this matter was filed in the Court of Claims on December 14, 2017 and was served upon the Office of the Attorney General on December 15, 2017.

Defendant argues that in regard to the claim of failure to diagnose claimant's medical condition the latest accrual date possible based on the claim would be December 31, 2016. Defendant states that claimant failed to comply with the requirements of Court of Claims Act 10 (3) since the claim was not served until December 15, 2017; well beyond the 90-day statutory time period set forth in Court of Claims Act 10 (3).

Court of Claims Act 10 (3) requires that a claim must be filed and served upon the Office of the Attorney General within ninety days after the accrual of such claim unless the claimant shall within such time serve a notice of intention to file a claim upon the Office of the Attorney General. A notice of intention was not served in this matter.

The Court of Appeals has long held that "[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). Accordingly, a claimant who has not met the literal requirements of the Court of Claims Act has not properly commenced his action (Lichtenstein v State of New York, 93 NY2d 911, 913 [1999]; Finnerty v New York State Thruway Authority, 75 NY2d 721 [1989]). As a result, the Court is compelled to dismiss the claim due to claimant's failure to comply with the requirements set forth in Court of Claims Act 10 (3) (Hargrove v State of New York, 138 AD3d 777 [2d Dept 2016]; Caci v State of New York, 107 AD3d 1121 [3d Dept 2013]).

Lastly, because the crux of the claim was the deprivation of medical treatment for a particular period of time and not that claimant received continuing treatment for his condition, the Court finds that claimant is not entitled to the application of the continuous treatment doctrine (Watson v State of New York, 35 AD3d 985 [3d Dept 2006]).

Therefore, for the foregoing reasons, defendant's motion is granted and the claim is dismissed.

June 1, 2018

Hauppauge, New York

GINA M. LOPEZ-SUMMA

Judge of the Court of Claims