New York State Court of Claims

New York State Court of Claims

FRIER v. THE STATE OF NEW YORK, #2002-011-505, Claim No. 102525, Motion Nos. M-64207, CM-64264


Synopsis


Claimant's motion to dismiss is granted and the cross-motion to treat the notice of intention as a claim is denied.

Case Information

UID:
2002-011-505
Claimant(s):
DARNELL FRIER The Court sua sponte amends the caption to reflect the only properly named defendant.
Claimant short name:
FRIER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court sua sponte amends the caption to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102525
Motion number(s):
M-64207
Cross-motion number(s):
CM-64264
Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Darnell Frier, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Dennis M. Acton, Esq., Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 11, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


In responding to the motion to dismiss, claimant has conceded that the claim was served byregular mail and has made a cross-motion pursuant to Court of Claims Act §10(8) to treat the notice of intention as a claim.

Court of Claims Act §10(8) provides:
"A claimant who timely serves a notice of intention but who fails to timely serve or file a

claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The court shall not grant such application unless: it is made upon motion before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant."


In the notice of intention claimant alleges that on August 3, 1999 he was shackled and cuffed while being transported to attend a funeral. According to claimant, the leg cuffs were too tight and there was not sufficient space in the vehicle to properly position his legs. Claimant maintains that as a result of these two factors a blood clot developed which causes him pain and problems walking. In the notice of intention claimant asserts, as he does in his affidavit in support of the cross- motion, that the claim accrued on August 17, 1999 when he was at the Alice Hyde Hospital for treatment of the blood clot.

Although the period of limitation set forth in article two of the CPLR has not expired on the claim, a question has arisen as to whether the notice of intention was timely served. Under Court of Claims Act §10 the notice of intention was required to be served within ninety days of accrual of the claim. In this instance the notice of intention was served on November 12, 1999 and therefore, if the claim accrued anytime after August 13, 1999, service was timely.

A claim accrues when damages become ascertainable (Waters of Saratoga Springs v State of New York, 116 AD2d 875, affd 68 NY2d 777). Claimant maintains in his affidavit in support of the motion that the damage caused by improper shackling could not be determined until he was evaluated at the prison infirmary on August 17, 1999. However, there is no basis for the conclusion reached by claimant that damages were not ascertainable until the blood clot was discovered. Clearly, claimant suffered some pain, and probably problems walking, prior to that time which led him to seek medical attention. The fact that damages remained indefinite to some extent did not indefinitely delay accrual of a claim (Otis Elevator Co. v State of New York, 52 AD2d 380). Unless claimant can establish that no injury was apparent until sometime after August 13, 1999, he has failed to establish that the notice of intention was timely served. Claimant has not met that burden here.

The motion to dismiss the claim is granted and the cross-motion to treat the notice of intention as a claim is denied.


January 11, 2002
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims


Papers Submitted:

  1. Notice of Motion dated October 17, 2001
  2. Affidavit in Support of Dennis M. Acton, Esq. sworn to the 17th day of October, 2001 with exhibits annexed
  3. Notice of Cross-Motion dated November 1, 2001
  4. Affidavit in Opposition to Motion and in Support of Cross-Motion sworn to the 1st day of November, 2001
  5. Affidavit in Opposition of Dennis M. Acton, Esq. sworn to the 9th day of November, 2001