New York State Court of Claims

New York State Court of Claims

SMITH v. STATE OF NEW YORK, #2002-018-196, Claim No. NONE, Motion No. M-65528


Synopsis


Movant's motion for permission to treat notice of intention as a claim is granted as to the cause of action for negligence. No cause of action for medical malpractice will be considered as part of the claim.

Case Information

UID:
2002-018-196
Claimant(s):
JOHN SMITH
Claimant short name:
SMITH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-65528
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
HOWARD A. BALSAM, ESQUIRE
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
December 10, 2002
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Movant brings a motion for permission to treat the notice of intention as a claim pursuant

to Court of Claims Act §10(8)(a). Defendant opposes the motion.
The notice of intention asserts that on August 3, 1999 movant, an inmate at Ogdensburg Correctional Facility, was punching a speed bag in the outside weight area at approximately 10:20 a.m., when a 75 lb. weight fell off the top of the speed bag assembly onto movant's forehead causing lacerations and contusions. Movant was taken to the infirmary where his wounds were cleaned, and he was given an ice pack. Based upon his complaints of pain in his head and dizziness, he was admitted to the infirmary and given Ibuprofen. The next day he continued to complain of head pain and dizziness along with neck and back pain. Movant was given a hot pack and Tylenol, examined by one facility doctor and another scheduled an MRI. Movant is alleging he sustained injuries due to the weight plunging down upon his head as a result of the recreational staff not securing the weight area and for the negligence of the medical staff for not adequately caring for his serious injuries.

By all accounts, movant served a timely notice of intention upon the Attorney General on September 27, 1999. Movant never filed or served a claim and now seeks relief under Court of Claims Act §10(8)(a), asking to treat the notice of intention as a claim.

Court of Claims Act §10(8)(a) 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."

Movant's application is timely made for a negligence cause of action (CPLR 214 [5]). The notice of intention also asserts improper medical treatment of movant by the infirmary staff; however, any medical malpractice claim is untimely for relief under Court of Claims Act §10(8).

The notice of intention adequately meets the other requirements set forth in Court of Claims Act §10(8). The notice of intention was timely served and set forth sufficient facts to constitute a claim. The only information which is not included is the total sum being claimed for damages. The Court does not find that the failure to state the amount of damages being sought is fatal to the application (
See, Muller v State of New York, 184 Misc 2d 500, 502) since that defect can be remedied by the filing of an amended claim. Given that the notice of intention was served within 90 days of the date of accrual, and adequately apprised defendant of the allegations surrounding the claim, there is no prejudice to the defendant.
Accordingly, movant's motion for permission to treat the notice of intention as a claim is GRANTED as to his cause of action for negligence. No cause of action for medical malpractice will be considered as part of the claim. The notice of intention which was served upon the State on September 27, 1999 shall serve as the claim in this action. The Chief Clerk is directed to make a copy of the notice of intention, which is contained in movant's motion papers and designate it as a claim. The claim shall be given an appropriate number as if it had been filed on September 27, 1999. Within 30 days from the date this Decision and Order is filed with the Clerk of the Court, movant should file and serve an amended claim to set forth a demand for relief. Defendant shall have 40 days from the date of service of the amended claim in accordance with the Uniform Rules for the Court of Claims [22 NYCRR] §206.7(b) to file and serve its answer.


December 10, 2002
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims

The Court considered the following documents in deciding this motion:

Notice of Motion.................................................................................1

Affidavit of John Smith, in support, with exhibits attached thereto....2

Affirmation of Howard A. Balsam, Esquire, in support, with

exhibits attached thereto...........................................................3


Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney

General, in opposition, with exhibit attached thereto...............4