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
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
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.