Upon the foregoing papers, this motion is denied.
Claimant seeks permission to treat his Notice of Intention to file a claim as a
claim pursuant to §§10 and 11 of the Court of Claims Act. He alleges
that a Notice of Intention was timely served and
and appends a copy of a Notice of
Intention which alleges an incident occurring at Auburn Correctional Facility
(Auburn) on March 15, 2001, in which he contends that he was assaulted by fellow
inmates and did not receive medical attention for his injuries until March 16,
2001. He also alleges that he was harassed and assaulted by various correction
officers through March 31, 2001, at which time he was transferred to Shawangunk
Correctional Facility. He alleges negligence in the failure to have diagnosed
rib fractures on March 16, later diagnosed on or about April 6, 2001.
The Notice of Intention notes his intention to bring a claim for his injuries
from the three inmates and for insufficient medical treatment from March 16 to
March 31, 2001, as well as injuries from handcuffs sustained on March 16, 2001,
for "sadistic and brutal treatment" received from Auburn by four correction
officers on March 21, 2001, and for damages because he only had one shower in 14
days while at Auburn.
Claimant does not offer any reason why he wishes to treat his Notice of
Intention as a claim, and there is no affidavit in support of his application.
His moving papers, other than his motion to proceed as a poor person and
ancillary papers thereto, to wit, for a fee reduction (the papers for which have
been retained at the Clerk's office pending the determination of this motion)
consists of a copy of his Notice of Intention and his Application for Permission
to treat his Notice of Intention as a claim, in which he asserts that the
Defendant will not be prejudiced because the date to hear this motion can be set
by the Court or the Defendant.
In opposition, the Defendant acknowledges service of the Notice of Intention on
June 14, 2001, describing prospective causes of action sounding in battery and
negligence. As the Defendant correctly notes, a claim for battery must be
commenced within one year of the alleged occurrence (CPLR 215; also see Court
of Claims Act §10[3-b]). The Defendant correctly alleges that Claimant had
until March 2002 to serve and file his claim for the alleged intentional tort of
assault and battery. Claimant's response argues that he did not learn of the
extent of his injuries, and thus that his cause of action did not accrue until
later, but the exhibit attached to his Response showed the allegedly fractured
ribs in a document dated April 19, 2001. Furthermore, his awareness of the said
rib fracture was referenced in the Notice of Intention as existing on April 6,
2001. Thus to that extent, Claimant's motion must be and hereby is denied, as
any allegations relating to assault and battery had to have been filed within
one year of accrual. The instant application was not dated until June 2002,
well beyond the one year period, and, as such, is untimely (Court of Claims Act
As to any allegation alleging negligence, again the Defendant correctly notes
that Claimant has preserved until March 15 or 16, 2003 his right to serve and
file a claim for all negligent acts within 90 days preceding the service of his
Notice of Intention on June 14, 2001, which acts were alleged in the said Notice
of Intention. Accordingly as to that part of the motion seeking to have
allegations of negligence in the Notice of Intention be deemed a claim, the
motion is denied as unnecessary.
Claimant alludes to the Court's discretion to permit the late filing of claims
(§10). The statute requires that such application, like one seeking
permission to treat a Notice of Intention as a claim (§ 10) both must be
brought prior to the expiration of the underlying statute of limitations of CPLR
article 2. Additionally no proposed claim has been submitted and there has been
no discussion of the six statutory factors in §10(6).
Claimant also sought, in conjunction with the instant motion, to "seal all
documents and proceed under a pseudonym." The request is related to his
contention that many of the exhibits pertain to his medical and mental health
records. This request is denied at this time as this motion has been otherwise
denied, there is no claim, and there are no medical or mental health records
proffered to me. Should Claimant serve and file a claim in which such records
are implicated, he could renew his application to seal his medical and mental
health records from public view. His application to proceed under a pseudonym
is denied as no reason therefore has been articulated.
The motion is denied in its entirety in accordance with the above.