New York State Court of Claims

New York State Court of Claims

MARRERO v. DR. RABINOWTZ, ET. AL., #2002-009-53, Claim No. 106311, Motion No. M-65618


Synopsis


Defendant's motion to dismiss the claim based upon a failure of claimant to allege a cause of action was granted.

Case Information

UID:
2002-009-53
Claimant(s):
ALEJANDRO MARRERO
Claimant short name:
MARRERO
Footnote (claimant name) :

Defendant(s):
DR. RABINOWTZ, ET. AL.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106311
Motion number(s):
M-65618
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY, JR.
Claimant's attorney:
ALEJANDRO MARRERO, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
November 5, 2002
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant has brought this motion seeking an order dismissing the claim herein.

The following papers were considered by the Court in connection with this motion:
"Pre Answer Motion to Dismiss Claim", Affirmation, with Exhibits 1,2

As the basis for its motion to dismiss, defendant contends that (1) the claim does not set forth any accrual date, so that it is impossible to ascertain exactly when the alleged claim occurred; (2) that the claim was untimely served; and (3) that the claim fails to state any cause of action. The Court notes that claimant has not submitted any response to these allegations and this motion.

In considering this motion, the Court has reviewed the allegations set forth by claimant in his claim, all of which pertain to his medical condition and the medications that have been prescribed for him. While the Court is mindful of the fact that pleading requirements should be liberally construed, especially those submitted by incarcerated pro se litigants, this Court is unable to identify any allegation of negligence or medical malpractice against the State set forth in this claim. "Conclusory or general allegations of negligence that fail to adduce the manner in which the claimant was injured and how the State was negligent" do not satisfy the pleading requirements of § 11 of the Court of Claims Act (Heisler v State of New York, 78 AD2d 767, 768). In this case, the failure of claimant to specify any alleged negligence of the State is a fatal defect which requires dismissal of the claim (Chung v State of New York, 122 Misc 2d 676; Bonaparte v State of New York, 175 AD2d 683).

Since this claim must be dismissed for failure to state a cause of action, it is not necessary for this Court to address the other issues raised by defendant regarding timeliness of service, adequacy of the previously served notice of intention to file a claim, or the failure of claimant to set forth an accrual date in his claim.

Accordingly it is

ORDERED, that Motion No. M-65618 is hereby GRANTED; and it is further

ORDERED, that Claim No. 106311 is hereby DISMISSED.


November 5, 2002
Syracuse, New York

HON. NICHOLAS V. MIDEY, JR.
Judge of the Court of Claims