New York State Court of Claims

New York State Court of Claims

ASTACIO v. THE STATE OF NEW YORK, #2000-010-050, Claim No. 93545


Synopsis


Inmate med mal

Case Information

UID:
2000-010-050
Claimant(s):
GEORGE ASTACIO
Claimant short name:
ASTACIO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
93545
Motion number(s):

Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
GEORGE ASTACIOPro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Elyse Angelico, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 11, 2000
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant, an inmate proceeding
pro se, seeks damages for defendant's alleged negligence in failing to follow written medical post-operative instructions for claimant's care after the removal of a benign left breast mass performed at St. Agnes Hospital on February 24, 1994. This claim was heard in a unified trial.
At trial, defendant moved to dismiss the claim on the ground that claimant had served the Notice of Intention by regular mail rather than by certified mail, return receipt requested and that consequently, the filed claim was untimely.[1]

Court of Claims Act §11(a) provides that a Notice of Intention shall be served upon the attorney general either personally or by certified mail, return receipt requested. This requirement is jurisdictional in nature and requires strict compliance (
see, Finnerty v New York State Thruway Auth., 75 NY2d 721). Accordingly, the claim warrants dismissal pursuant to CPLR 3211 (a)(2) (see, Adkison v State of New York, 226 AD2d 409; Hodge v State of New York, 213 AD2d 766).
In any event, the claim would have been dismissed for claimant's failure to establish,
inter alia, that his " injuries proximately resulted from the defendant's departure from the required standard of performance" (Tonetti v Peekskill Community Hosp., 148 AD2d 525). Significantly, claimant failed to produce any competent medical evidence, either from a treating physician or from an expert whose opinion was based upon the available medical records. In the absence of such evidence, claimant's own unsubstantiated assertions and speculations were insufficient to establish merit and a prima facie case (see, Wells v State of New York, 228 AD2d 581; Mosberg v. Elahi, 176 AD2d 710, affd 80 NY2d 941; Quigley v Jabbur, 124 AD2d 398).
Defendant's motion to dismiss, upon which decision was reserved, is hereby GRANTED.

LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 93545.



August 11, 2000
White Plains , New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1]
This defense was raised with sufficient particularity in defendant's answer at ¶ 3.