Defendant's motion to dismiss the claim as untimely.
|Claimant short name:||CLARK|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||GINA M. LOPEZ-SUMMA|
|Claimant's attorney:||Ronald Clark, Pro Se
By: No Appearance
|Defendant's attorney:||Hon. Barbara D. Underwood, Attorney General
By: Jeane L. Strickland Smith, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 29, 2018|
|See also (multicaptioned case)|
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 Exhibits A-B; and Claimant's correspondence to the Court dated July 1, 2018(1) .
Defendant, the State of New York, has brought this motion pursuant to Court of Claims Act §§ 10 and 11 seeking an order dismissing the claim on the grounds that the claim is untimely and the claim does not comply with the specificity requirement of Court of Claims Act § 11.
Claimant, Ronald Clark, a pro se inmate, has opposed this motion.
Claimant alleges that on February 24, 2015 while incarcerated at Woodbourne Correctional Facility he was given a prescription of 100 mg of Itraconazole (Sporonox) twice a day for seven days to treat toenail fungus. Claimant was to repeat this 7-day medication regimen after 21 days. The physician ordered three series of 7-day medication treatments. Claimant was transferred to Fishkill Correctional Facility before starting the second 7-day medication treatment. Claimant alleges that when he arrived at Fishkill Correctional Facility the physician doubled his medication dosage of Sporonox to 200 mg twice a day for seven days with a 21-day rest period. During the third treatment, the medication dosage was changed to 100 mg for 90 days. After two months claimant began to experience side effects of the medication.
On December 28, 2015, claimant served a notice of intention to file a claim on the Office of the Attorney General by certified mail, return receipt requested.
Defendant argues that the notice of intention was received six months after claimant began experiencing side effects of the medication in June 2015. Defendant continues that the notice of intention was received five months after claimant would have finished his third 90-day medication regimen in July 2015. Defendant contends that either date is more than 90 days from the date of accrual of the claim in violation of the time requirements of Court of Claims Act § 10. Additionally, defendant argues that the notice of intention fails to comply with the specificity requirements of Court of Claims Act § 11 which mandates that the notice of intention state the time when and the place where the claim accrued. Defendant states that the only date specified in the notice of intention is February 24, 2015.
The claim was served upon the Office of the Attorney General on January 16, 2018 by certified mail, return receipt requested.
Court of Claims Act § 10 (3) requires that:
"[a] claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such 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 claim."
Court of Claims Act § 11 (b) requires 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 and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum 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."
Defendant argues that, even assuming the notice of intention is valid, the claim is untimely because it was served outside the time requirements of Court of Claims Act § 10. The claim was not served on the Attorney General's Office until January 16, 2018 , beyond the two-year period set forth in Court of Claims Act § 10 (3).
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 ; see also Finnerty v New York State Thruway Authority, 75 NY2d 721 ). Claimant's failure to timely serve the claim deprives this Court of jurisdiction over the claim (Lepkowski v State of New York, 1 NY3d 201 ; Weaver v State of New York, 82 AD3d 878 [2d Dept 2011]; Turley v State of New York, 279 AD2d 819 [3d Dept 2001]). Accordingly, the Court must dismiss the claim.
Similarly, a notice of intention which fails to specify a date of accrual runs afoul of the jurisdictional requirement of Court of Claims Act § 11 (b) and thus cannot serve to extend the time requirements of Court of Claims Act § 10 (3) (Lepkowski v State of New York, 1 NY3d 201 ).
Therefore, for the foregoing reasons, defendant's motion to dismiss the claim is granted.
November 29, 2018
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims
1. The Decision and Order has been amended to reflect the Court's receipt and consideration of claimant's correspondence to the Court dated July 1, 2018.