New York State Court of Claims

New York State Court of Claims

ALDUEY v. THE STATE OF NEW YORK, #2000-009-417, Claim No. 101683, Motion Nos. M-61374, M-61449


Defendant brought a motion seeking an order dismissing the claim for failure to state a cause of action. Claimant brought a motion seeking poor person relief. Claimant's cause of action asserting federal Constitutional claims and intentional infliction of emotional distress were dismissed. His causes of action asserting negligence and gross negligence, sounding in medical malpractice, were retained. Claimant's motion for poor person relief was denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-61374, M-61449
Cross-motion number(s):

Nicholas V. Midey, Jr.
Claimant's attorney:
Defendant's attorney:
Attorney General
BY: Carla T. Rutigliano, Esq.,
Assistant Attorney General of Counsel.
Third-party defendant's attorney:

Signature date:
June 20, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought a motion seeking permission to proceed as a poor person (Motion No. M-61374). Defendant has brought a motion seeking an order dismissing the claim (Motion No. M-61449). For purposes of judicial economy, the Court will consider both motions herein.

The following papers were considered by the Court in connection with these motions:
Petition (Motion No. M-61374) 1

Affirmation in Opposition (Motion No. M-61374) 2

Notice of Motion, Affirmation, with Exhibits (Motion No. M-61449) 3,4

Filed Papers: Claim

The Court will first consider defendant's motion to dismiss, which alleges that claimant has failed to state a cause of action upon which relief may be granted by this Court.

In his claim, claimant alleges that he suffered personal injuries on June 29, 1999, when he tripped and fell while entering the shower room at Cape Vincent Correctional Facility, where he was then incarcerated. He alleges that he suffered injuries to his forehead and a finger on his left hand. Following this fall, claimant alleges that he did not receive proper medical attention for these injuries.

Claimant sets forth various causes of action in his claim, based on theories of negligence, violation of federal Constitutional rights, and intentional infliction of emotional distress. By its motion, defendant seeks to dismiss all of these causes of action.

Although not set forth in the caption of this claim, claimant has set forth in his claim causes of action against numerous State officials and State agencies. He has asserted causes of action against these named individuals and agencies on the basis of 42 USC § 1983, alleging a violation of his civil rights under the United States Constitution.

Although the State is responsible for torts committed within the scope of employment by State employees, the proper party in the Court of Claims is the State of New York only, and this Court does not have jurisdiction over individual employees, officials, departments, or agencies. Furthermore, 42 USC § 1983 cannot be used as a basis for suit against a state (Will v Michigan Department of State Police, 491 U.S. 58). Claimant's "First Cause of Action" and "Second Cause of Action", both alleging a violation of federal Constitutional rights, must therefore be dismissed. Claimant's "Third Cause of Action" contains allegations of negligence, and his "Fourth Cause of Action" contains allegations of gross negligence in the care and treatment of the injuries suffered by claimant in his fall. Defendant seeks to dismiss these causes of action based upon the failure of the claimant to provide any documentation or evidentiary support for these claims. Defendant's attorney has cited several cases from the Court of Claims that have required an affidavit from a medical expert in order to support a theory of medical malpractice. Defendant's reliance on this case law authority, however, is misplaced. The cited cases all involve applications seeking permission to file a late claim pursuant to § 10(6) of the Court of Claims Act. In order to receive permission to serve and file a late claim, a claimant must establish that he or she has a meritorious claim. Courts have held in many such applications (but not in every such instance) that an affidavit from a medical expert is required in order to establish a meritorious claim for medical malpractice. There is no such requirement, however, that a claimant must at the outset establish a meritorious claim by competent medical proof when a claim is timely served and filed.

In this claim, claimant has set forth allegations of negligence sounding in medical malpractice, based upon the medical care and treatment received by him. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, and must provide sufficient evidence eliminating any material issues of fact (Zuckerman v City of New York, 49 NY2d 557; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395). On the papers before the Court, defendant has not established that the causes of action alleging negligence and gross negligence have no merit so as to entitle it to summary judgment.

In his "Fifth Cause of Action" claimant asserts a cause of action based upon intentional infliction of emotional distress. It has been held that there can be no recovery against the State on such a basis, as it has been determined to be against public policy (Wheeler v State of New York, 104 AD2d 496). Accordingly, this cause of action must also be dismissed.

Additionally, in his claim for relief, claimant seeks punitive damages. This Court has no jurisdiction to award such damages, since the waiver of immunity (Court of Claims Act, § 8), does not extend to punitive damages (Sharapata v Town of Islip, 56 NY2d 332).

Since claimant's causes of action alleging negligence and gross negligence remain, this Court must now address his motion seeking poor person relief. By an Order dated February 22, 2000, Presiding Judge Susan Phillips Read has resolved claimant's request for a reduction of the filing fee, pursuant to Court of Claims Act, § 11-a(1) and CPLR 1101(f).

Claimant, however, also seeks the assignment of an attorney to represent him in this claim. The decision to assign counsel is a matter of judicial discretion, and such an assignment is not an absolute right in civil litigation (Matter of Smiley, 36 NY2d 433). As set forth above, this case is one for money damages, based upon allegations of negligence against the defendant. This case does not warrant the exercise of discretion in assigning counsel under the standards of Matter of Smiley, supra.

Based on the above, it is

ORDERED, that Motion No. M-61374, seeking poor person relief, is hereby DENIED; and it is further

ORDERED, that Motion No. M-61449 is hereby GRANTED, in part, and claimant's first, second, and fifth causes of action, together with any claim for punitive damages, are hereby DISMISSED, and all claims, if any, against individual State officials, employees, agencies, or departments asserted in his claim are also DISMISSED; and it is further

ORDERED, that Motion No. M-61449, to the extent that it seeks dismissal of claimant's third and fourth causes of action, is hereby DENIED.

June 20, 2000
Syracuse, New York

Judge of the Court of Claims