motion to dismiss granted, Med Mal claim dismissed due to untimeliness of notice of intention, no violation of claimant's state constitutional rights, double cell housing allowed for inmates in the special housing unit.,
|Claimant(s):||In the Matter of the Claim of CARL FRASER|
|Claimant short name:||FRASER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Claimant's attorney:||CARL FRASER
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
Attorney General for the State of New York
By: Christina Calabrese, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||July 23, 2018|
|See also (multicaptioned case)|
The following papers numbered 1-2 were read and considered by the Court on defendant's motion to dismiss:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits........................1
Claimant's Letters Dated March 8, 2018, May 19, 2018 Seeking Adjournment of the Motion.....................................................................................................................2(1)
On August 11, 2015, claimant served defendant with a Notice of Intention to File a Claim (Defendant's Ex. E) which alleges that on May 8, 2015, during claimant's incarceration at Greene Correctional Facility, claimant was ordered to provide a mandatory blood sample to be tested for tuberculosis (TB). Claimant alleges that the phlebotomist attacked claimant with a needle and syringe and wrongfully attempted to take more than the mandatory amount of blood required for the TB test. Based upon this factual scenario, claimant's Notice of Intention to File a Claim asserts a cause of action for assault, battery and false imprisonment.
On August 26, 2016, claimant served defendant with a copy of the claim (Defendant's Ex. A). The claim was filed with the Court on August 29, 2016. On September 7, 2016, defendant served an answer to the claim and asserted numerous jurisdictional defenses (Defendant's Ex. B). Defendant now moves to dismiss the claim based upon the jurisdictional defense asserted in its answer.
The Court finds that the allegations of assault, battery and false imprisonment warrant dismissal on the ground that the Notice of Intention to File a Claim served on August 11, 2015 was not timely served within 90 days after the May 8, 2015 accrual date for those causes of action (see Court of Claims Act §§ 10 , 10 [3-b]).
The cause of action for medical malpractice also warrants dismissal due to the untimeliness of the Notice of Intention to File a Claim.
To the extent that the claim alleges a violation of claimant's state constitutional rights, it too warrants dismissal as claimant has failed to assert a cognizable state constitutional claim (see Brown v State of New York, 89 NY2d 172, 188 ).
Finally, the claim alleges that claimant was forced into double-cell housing in the special housing unit (SHU) from May 8, 2016 through May 31, 2016 in violation of 7 NYCRR 1701.7 (d) (Claim, ¶¶ 66-80). This cause of action also warrants dismissal as 7 NYCRR 1701.7 (d) applies to general population inmates (7 NYCRR 1701.5 [b] ). Claimant was not a general population inmate on the dates alleged; rather he was housed in SHU for disciplinary reasons and 7 NYCRR 300.2 (b) authorizes double-cell housing in SHU.
Accordingly, defendant's motion to dismiss Claim No. 128442 is hereby GRANTED.
July 23, 2018
White Plains, New York
Judge of the Court of Claims
1. Pursuant to claimant's requests and upon consent of defense counsel, the Court has adjourned this motion on two occasions since its initial calendared date of March 21, 2018.