New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2001-028-0535, Claim No. 103396, Motion No. M-63231


Claimant has, for purposes of CPLR 3211(a)(7) motion to dismiss, alleged claims for negligence, medical malpractice and deliberate indifference to medical needs. Court does not have jurisdiction over 8th amendment cruel and unusual punishment claim. State constitutional tort for cruel and unusual punishment (Article 1 § 5) does not lie as deliberate indifference claim is an effective remedy and safeguards constitutional protections. Protective Order granted, interrogatories directed to individuals are patently improper and are stricken

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):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Paul F. Cagino, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 6, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Defendant's motion to dismiss the Claim pursuant to CPLR 3211(a)(7)[1] or in the alternative for a protective order pursuant to CPLR 3103:

• abNotice of Motion and Supporting Affirmation of Paul F. Cagino, Esq., filed March 14,

2001, (Cagino Affirmation).
• abLetter in Opposition of Preston A. Smith, received March 19, 2001, (Smith Opposition) and annexed "Summary Judgment Motion"

• abFiled Papers: Claim, filed November 15, 2000; Answer, filed December 13, 2000;
"Demand for Interrogatories of Defendant(s) Pursuant to NYCPLR [sic] section(s) 3130, 3133 and 3134" directed to P. Franklin, filed February 13, 2001; Dr. Chaloner, filed January 4, 2001 and A. Cole, filed January 25, 2001; and Claimant's Demand for Discovery to Produce Pursuant to NYCPLR [sic] sections 3104, 3101(a), 3102, filed January 4, 2001.

CPLR 3211

Defendant has moved for dismissal of the claim pursuant to CPLR 3211(a)(7), preserved in the Answer as an affirmative defense, or in the alternative for a protective order pursuant to CPLR 3103 with regard to three different sets of interrogatories filed by claimant. The Defendant takes the position that the claim must be dismissed since it "rambles on"and "does not provide sufficient particulars as to any cause of action, nor does it provide any elements of a cause of action". (Cagino Affirmation ¶ 5, pg. 2)

This Court is often faced with the task of deciphering pleadings submitted by pro se litigants which are handwritten, imprudently doused with legalese and lacking in clarity. Absent prejudice to the defendant, and there being none, the court must liberally construe the claim. (see, Hughes v Rowe, 449 US 5, 9; Blades v State of New York, [Ct Cl, Claim No. 102439, M-62314 Collins, J, November 30, 2000, UID #2000-015-104];[2] see also CPLR 3026). Furthermore, upon a defense made 3211(a)(7) motion, the Court must assume the truth of the facts as alleged by the Claimant and draw all inferences from such facts in favor of the non-moving party (Bassile v Covenant House, 152 Misc 2d 88, affd 191 AD2d 188, lv to app denied 82 NY2d 656). "[T]he sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" (Guggenheimer v Ginzburg, 43 NY2d 268, 275; see, Leon v Martinez, 84 NY2d 83, 87-88).

The court has reviewed the five page[3] handwritten claim, wherein Claimant alleges by various terms (i.e. "deliberate indifference," "medical negligence," and "cruel and unusual punishment"[Claim, ¶ 2, p.4])[4] that the Defendant has failed to provide adequate medical treatment for his knees, left shoulder and an arthritic condition of his knees. Specifically, the Claim alleges a failure to provide prescribed medications (naprosyn and an analgesic balm [Claim, ¶ 2, pp. 2 & 3]), physical therapy for his shoulder (Claim, ¶ 2, p.2), and surgery. Claimant also alleges his knee brace was inadequate as it lacked metal inserts (Claim, ¶ 2, p.2) and for a period of time was taken away from him. The Claim further states the failure to provide adequate treatment has "caused continual degeneration of...left shoulder and both areas of the knees and arthritis" (Claim, ¶ 2, p.1). Claimant's allegations include a number of dates on which he alleges that he was either denied sick call or given additional inadequate treatment (Claim, ¶ 2, pp. 2 & 4). These allegations are sufficient to plead causes of action for negligence, medical malpractice and deliberate indifference to medical needs (see, Stanback v State of New York, 163 AD2d 298; Kagan v State of New York , 221 AD2D 7; (Matter of Ronson v Commissioner of Correction State of New York, 112 AD2d 488; Cooper v Morin, 50 AD2d 32, 37; Harris v Young, 509 F.Supp. 1111) and while same may have been drafted inartfully by this pro se litigant, they have been plead with sufficient particularity to survive the instant motion to dismiss.


While Defendant suggests a protective order is warranted regarding Claimant's Interrogatories due to his failure to state a cause of action and/or for their lack of clarity, the Court, sua sponte, grants this application on separate grounds. Upon review of the three separate papers captioned by Claimant as "Demand for Interrogatories of Defendant(s) Pursuant to NYCPLR section(s) 3130, 3133 and 3134"[5] the Court finds the interrogatories patently improper as each set is addressed to a specified "defendant" with highly personalized questions for each "defendant." These "defendants" are individuals who appear to be employees of the Department of Correctional Services. The Court of Claims does not have jurisdiction over individuals (see, Smith v State of New York, 72 AD2d 937, 938; Court of Claims Act § 9) and, unlike a deposition notice, interrogatories may only be served upon a party (compare, CPLR Rule 3107 and CPLR § 3130). Moreover, Claimant has filed a document demand which seeks records that will answer most, if not all, of his interrogatories. As such, the Court will not attempt to parse the interrogatories into acceptable questions. The parties in the future will be expected to take appropriate steps to resolve discovery issues before Court intervention is sought. Accordingly, the Defendant's application for a Protective Order regarding Claimant's "Demand for Interrogatories of Defendant(s) Pursuant to NYCPLR section(s) 3130, 3133 and 3134" directed to P. Franklin, filed February 13, 2001; Dr. Chaloner, filed January 4, 2001 and A. Cole, filed January 25, 2001 is granted.

Finally, Claimant has attached to his opposition papers what purports to be a Motion for Summary Judgment. Notwithstanding Claimant's assertions that the copy of the motion to be filed with the Court was returned for insufficient postage, that application lacks a Notice of Motion (see, Uniform Rules for the Court of Claims, § 206.8[a]) and is therefore not properly before the Court.[6]

The Defendant's motion to dismiss is DENIED as set forth hereinabove.

Defendant's motion for a protective order is GRANTED and Defendant shall not be required to answer the Interrogatories as served by Claimant.

June 6, 2001
Albany, New York

Judge of the Court of Claims

[1] Although denominated as a Motion pursuant to CPLR 3211(a)(6), the Court will treat the motion as movant intended, that is, as a motion for failure to state a cause of action pursuant to CPLR 3211(a)(7).
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[3] Defendant has mistakenly included the "Memorandum of Law (In Support of Claim)", which was stapled to the Claim, as a part of the filed Claim, thereby adding an additional five pages to the claim (Cagino Affirmation,¶ 7[claimant's 10 page claim]) .
[4] Claimant's paragraph "2", which sets forth the details of the claim is four pages long and cannot be renumbered by the Court for ease of reference. Accordingly, in an effort to further guide the reader, the Court will state which page of paragraph "2" reference is made. Claimant's attention is directed to the requirements of CPLR 3014.
[5] CPLR 3134 was repealed by the Laws of 1993, c.98 § 14, effective January 1, 1994.
[6] The Court here notes, were that motion before the court, claimant did not provide any competent expert medical testimony sufficient to establish a prima facie case with regard to his claims of medical negligence and/or malpractice (see, Duffen v State of New York, 245 AD2d 653).