|Claimant short name:||RIVERA|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :||The Court has amended the caption sua sponte to reflect the only proper defendant before the Court.|
|Judge:||DEBRA A. MARTIN|
|Claimant's attorney:||LOTEMPIO PC LAW GROUP
BY: ANDREW T. GILL, ESQ.
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: TAMARA B. CHRISTIE, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 6, 2021|
|See also (multicaptioned case)|
The following papers were read on defendant's motion to dismiss the claim:
1. Notice of Motion with Affirmation of Tamara B. Christie, AAG and attached exhibits, filed June 15, 2021;
2. Affirmation of Andrew T. Gill, Esq., with attached exhibits, dated August 4, 2021;
3. Filed papers: Claim, Answer.
Claimant alleged that on October 1, 2018, while he was incarcerated at Groveland Correctional Facility and recovering from hernia surgery he had earlier that day, a correctional officer removed him from the infirmary and placed him in a room where he was "forcibly grabbed and slammed into a wall and otherwise assaulted and battered." He further alleged the officer left him in the room alone overnight, injured and bleeding, without alerting medical staff to his medical needs. The next morning, claimant was transported to Wyoming County Community Hospital for unspecified medical treatment. The claim further asserted that defendant was liable on grounds that its employees failed to stop the attack; it hired and retained unfit and unqualified correctional officers; it promoted, tolerated and/or ignored a pattern of behavior by correctional officers to target, abuse, and mistreat incarcerated individuals; and "failed to provide proper medical attention." (claim, at 2, ¶ 5.) The Injuries allegedly sustained by claimant included "opening of his surgical incision, swelling, bleeding, as well as psychological and emotional injuries, pain and suffering and loss of enjoyment of life, and potentially [sic] medical expenses and other economic loss." (id. at ¶ 7.)
Defendant moves to dismiss the allegation of intentional tort on the ground that it is untimely. In addition, defendant seeks an order compelling claimant to submit a certificate of merit certifying the validity of the medical malpractice claim or, in the alternative, an order dismissing the allegation of medical malpractice for failure to comply with CPLR 3012-a. In response, claimant submits that he does not intend to pursue causes of action for an intentional tort or medical malpractice. Accordingly, based on claimant's response, the Court grants the defendant's motion to dismiss the intentional tort and medical malpractice causes of action.
October 6, 2021
Rochester, New York
DEBRA A. MARTIN
Judge of the Court of Claims