New York State Court of Claims

New York State Court of Claims

COOK v. THE STATE OF NEW YORK, #2002-015-215, Claim No. 104782, Motion No. M-64119


Synopsis


Failure of claim to provide sufficient details of claimant's alleged injury, the specific act of negligence allegedly committed, the medical protocols allegedly violated or how such violation contributed to claimant's injury deprives Court of jurisdiction pursuant to Court of Claims Act § 11 (b).

Case Information

UID:
2002-015-215
Claimant(s):
ANTHONY COOK
Claimant short name:
COOK
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104782
Motion number(s):
M-64119
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Anthony Cook, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 24, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The defendant's pre-answer motion to dismiss the claim pursuant to CPLR 3211 (a) (2) and (8) for lack of jurisdiction is granted. The claim seeks to recover $100,000.00 in damages for personal injuries purportedly arising from ministerial neglect and the violation of unspecified DOCS protocol(s) by the medical staff of Mohawk Correctional Facility in Rome, New York beginning in November 1999 and continuing to date.

The defendant moves to dismiss the claim as jurisdictionally defective in that it fails to specify the date or dates upon which the claim accrued, the claim was not timely served and filed, does not adequately state the manner in which the State was negligent and neglects to itemize damages as required by Court of Claims Act § 11 (b). Claimant's opposition to the motion is an unsworn statement dated October 9, 2001 which purports to be an "affirmation" pursuant to CPLR 2106. Claimant, however, does not identify himself as one qualified to submit an affirmation in lieu of an affidavit pursuant to Rule 2106. Claimant's submission is therefore without legal effect.

The claim in pertinent part alleges:
2. This Claim is for (MINISTERIAL NEGLECT) by the Medical Staff at Mohawk Correctional Facility, by not providing adequate nurse screening and reasonable prompt access to a physician that is able to diagnosis claimant's injuries and to insure that medical appointments were scheduled.

3. AS AND FOR A FIRST CAUSE OF ACTION: It is claimed that the Mohawk Medical Staff and it's administrative and record keeping procedures are grossly inadequate, and several of the protocols were breached and as a direct result thereof claimant suffered severe pain and injuries, and these protocols are non-discretionary medical standards that were adopted by Mohawk Correctional Facilities Medical Department;

AS AND FOR A SECOND CAUSE OF ACTION: Mohawk Correctional Facility failed to meet these obligations, and in the process vioated [sic] it's own administrative protocols; It is further established that there is no governmental immunity for the negligent performance of these ministerial duties.

4. In or around November of 1999, as claimant was playing Football on a dorm facility team, claimant injured his groin area on his right side of his leg. The next following day, claimant reported to sickcall and requested treatment. Claimant has repeated going to sick-call and requesting for help, over and over again. Claimant has been seen by a facility doctor, over and over again and has been complaining of worse pain in the same area. Claimant has not been treated by a physician who can properly diagnosis claimant worsening condition, nor has claimant been given a requested (MRI) or (CT SCAN) as needed to properly diagnosis this condition. [sic]

5. Also as a result of the States Negligence, claimant suffered severe physical and mental pain and anguish including permanent disabilities from injuries getting worse.

6. Attached hereto as part of the claim is a set of medical records that show the many attempts to obtain treatment from this medical facility without success.

7. The particulars of claimant's damages are:

For pain and suffering and mental Anguish; also Ministerial Negligence and violating Protocol procedures in getting follow-up treatment etc.; and for permanent disability a total of; $100,000.00.
With regard to that portion of the motion which seeks dismissal for failure to state a cause of action, it is clear that "[t]he inquiry on a motion to dismiss pursuant to CPLR 3211 (subd [a], par 7) is whether a cause of action has been stated, not whether a cause of action can be proved (Gabrielle v Craft 75 AD2d 939). Accordingly, all of the allegations in the complaint must be assumed to be true and the pleadings as a whole are deemed to allege whatever cause of action may be implied from its statement by fair and reasonable intendment" (DePan v First Nat. Bank of Glens Falls, 98 AD2d 885).

Here the claim alleges that the State violated and continues to violate medical protocols resulting in physical pain and a delay in the rendition of proper medical treatment for his injured groin. The violation of protocols governing the provision of medical care to prisoners may constitute ministerial neglect and support a finding of liability for the negligent rendition of medical services (Kagan v State of New York, 221 AD2d 7). As it appears that the allegations of the claim may set forth a viable cause of action the motion must be denied insofar as it seeks dismissal for failure to state a cause of action (Lavigne v Allen, 36 AD2d 981, 982).

Although not listed as a ground for the requested relief in the notice of motion, defense counsel in his affirmation in support asserts:
This Claim should also be dismissed pursuant to CPLR Rule 3211 in that Claimant has failed to comply with the provisions of Section 11 (b) of the Court of Claims Act requiring, among other things, that the nature of the Claim be stated and the items of damage or injuries claimed to have been sustained thereof set forth.
The remaining paragraphs of the affirmation are devoted to arguments in support of the position related above.

While CPLR 2214 (a) requires that a notice of motion contain a statement of the grounds upon which relief is demanded, the failure to raise a particular ground in the notice of motion may be disregarded where the ground is clearly stated in the affirmation in support and no prejudice results (CPLR § 2001; HCE Assocs v 3000 Watermill Lane Realty Corp., 173 AD2d 774; Pace v Perk, 81 AD2d 444). Although claimant's submission in opposition to the motion was unsworn and therefore not in proper form it is clear that the claimant understood that the defendant was requesting relief based upon a failure to comply with the requirements of Court of Claims Act § 11 (b) and would not be prejudiced by the Court's consideration of the issue.

"Pursuant to Court of Claims Act § 11 (b), a notice of intention to file a claim and the claim must set forth the time and place in which the claim arose, and the nature of the claim. While Court of Claims Act § 11 (b) does not require 'absolute exactness', it requires a statement made with 'sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances. The statement must be specific enough so as not to mislead, deceive or prejudice the rights of the State. In short, substantial compliance with section 11 is what is required' (Heisler v State of New York, 78 AD2d 767; see, Harper v State of New York, 34 AD2d 865). However, 'conclusory or general allegations of negligence that fail to [state] the manner in which the claimant was injured and how the State was negligent do not meet its requirements' (Heisler v State of New York, supra at 767-768; see also, Patterson v State of New York, 54 AD2d 147, affd 45 NY2d 885)" (Grumet v State of New York, 256 AD2d 441, 442).

The provisions of section 11 (b) are jurisdictional in nature and a claim which fails to comply therewith is jurisdictionally defective (Harper v State of New York, 34 AD2d 865, Martin v State of New York, 185 Misc 2d 799). From a review of the claim it is virtually impossible to determine the nature of the claimant's injury, the specific acts of negligence alleged to have been committed, what protocols were violated or how the violation of any applicable protocols caused, contributed to or exacerbated claimant's condition. As claimant seeks to proceed on a negligence theory it was incumbent upon him to provide such information so as to comply with the jurisdictional elements of Court of Claims Act § 11 (b) which requires that the essential nature of the claim be stated. Having failed to set forth the nature of the claim with the required specificity the claim must be dismissed.

Insofar as the claim has been determined not to include the essential elements of a claim, the Court is without jurisdiction (Grande v State of New York, 160 Misc 2d 383) and it is, therefore, unnecessary to address the defendant's remaining contentions.


January 24, 2002
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated September 28, 2001;
  2. Affirmation of G. Lawrence Dillon dated September 28, 2001 with exhibits;
  3. "Affirmation" [sic] of Anthony Cook signed October 9, 2001.