New York State Court of Claims

New York State Court of Claims

BENNETT v. STATE OF NEW YORK, #2001-018-100, Claim No. 103833, Motion No. M-63519


Synopsis


Claim failed to comply with Court of Claims Act §11(b). Defendant's motion to dismiss granted.

Case Information

UID:
2001-018-100
Claimant(s):
DONALD BENNETT
Claimant short name:
BENNETT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103833
Motion number(s):
M-63519
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
DONALD BENNETTPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 27, 2001
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant brings a motion to dismiss the claim for failure to state a cause of action. The


Court has considered the following documents in determining the motion:


Notice of Motion.......................................................................................1


Affirmation of Joel L. Marmelstein, Assistant Attorney General,

with all exhibits attached thereto...................................................2


Affidavit of Thomas Hunter in support.....................................................3


Claimant has not submitted any written opposition to this motion.[1] Defendant argues that the claim, which was amended, does not state a cause of action. Defendant argues that aside from asserting the word negligence at the top of the claim, no indication of how the State was negligent is provided.
The claim was filed on February 14, 2001 with the Clerk of the Court. An amended claim was filed on February 28, 2001. The amended claim alleges in paragraph two the following:


Negligence. On the day of August 27, 2000 the claimant was showering early that morning in the dormitory of his housing area when he suffered from a seizure/stroke. He had awaken on Sunday morning alerting the officer on duty his [sic] light headedness [sic] and dizziness and requested to be seen by a medical personal [sic] becaus [sic] he had been feeling sick. About 7:20 a.m. while showering the claimant bit his tongue are [sic] the beginning stages of an attack and fell to the shower-room floor trying to yell. The claimant laid there in the shower roo floor for 6 to 7 minutes when another inmate observed the claimant on the shower-room floor who yelled for help and assisted claimant helping him rise from the floor [sic]. Though the claimant was very weak., [sic] he was not taking [sic] to the infirmary and was told to instead sign up for sick-call for sick next day [sic] which is what he did. He was seen the next day and informed by a nurse call [sic] he would be put on a list to see a doctor on Tuesday 8-29-00 and was never called. [sic] When the claimant went for his medications at 10PM [sic] this same nite [sic] a nurse reportedly told the claimant after he inquired about seeing the doctor "I don't care". Leave me alone I am only doing medications, nurse name is : Linda Liscum. [sic] The claimant filed a grievance, which has just been answered and now files this claim against the State of New York. 1.)- Mental anguish amount $50,000 2.)- Pain and Sufferering [sic] amount-$50,000 3.)- Permanent Disability amount- $1,000,000


The amended claim also asserts in paragraph three that the place where the acts occurred is the "shower room within the dormitory where the claimant suffered a seizure and blacked out of A-2 on August 27, 2000."

Court of Claims Act §11(b) requires that "[t]he claim shall state the time when and place where such claim arose, the nature of the same, and the items of damage or injuries claimed to have been sustained and the total sum claimed." Conclusory or general allegations of negligence that fail to indicate the manner in which the State was allegedly negligent or how Claimant was injured do not meet the requirements. (Heisler v State of New York, 78 AD2d 767; Grumet v State of New York, 256 AD2d 441)

The claim fails to comply with Court of Claims Act §11(b). There is no specific allegation of how the State was negligent. Was it the failure to allow Claimant to go to the infirmary Sunday morning? Was it the failure to aid Claimant when he fell in the shower? Was it the failure to allow Claimant to go to the infirmary and see a doctor the day he claims he suffered a seizure/stroke? Was it the delay in Claimant seeing a doctor? Whatever Claimant believes the State may have done or failed to do, there is absolutely no indication of how Claimant was injured; therefore, the claim is insufficient.

Based upon the foregoing, the Court GRANTS Defendant's motion. The amended claim is DISMISSED.

August 27, 2001
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims




[1]Claimant forwarded a letter to the Court dated May 21, 2001, requesting an order directing that the Department of Corrections produce claimant in court for the return date of the motion. Claimant was advised by letter that no appearance is necessary on the return date of the motion and the court would not issue an order to transport claimant.