New York State Court of Claims

New York State Court of Claims

JONES v. THE STATE OF NEW YORK, #2002-019-594, Claim No. 106213, Motion No. M-65935


Synopsis


In response to Court's Order to Show Cause, Claimant established service of Notice of Intention with respect to portions of Claim; affirmative defenses stricken with respect to those allegations.

Case Information

UID:
2002-019-594
Claimant(s):
DAVID JONES
Claimant short name:
JONES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106213
Motion number(s):
M-65935
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
DAVID JONES, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Joseph F. Romani, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
December 11, 2002
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

By an Order to Show Cause filed in the Office of the Clerk on October 22, 2002, this Court, sua sponte, directed both parties to submit written statements and any relevant proof to establish whether Claimant served a notice of intention or filed and served a claim within ninety days of the accrual of the claim in accordance with the requirements of Court of Claims Act (hereinafter "CCA") 10 and 11.


The Court has considered the following papers in connection with this motion:
  1. DECISION AND ORDER, Lebous, J., Claim No. 106213, Motion Nos. M-65550 & M-65680, filed October 22, 2002.
  2. Order to Show Cause, Motion No. M-65935, dated October 11, 2002, and filed October 22, 2002.
  3. Affirmation of Joseph F. Romani, AAG, in response to Order to Show Cause, dated November 13, 2002, and filed November 20, 2002, with attached exhibits.
  4. "Affirmation in Response to Order to Show Cause", of David Jones, sworn to November 20, 2002, and filed November 26, 2002, with attachments.
  5. Letter from David Jones to the Court, sworn to November 27, 2002, and received by the Court on December 10, 2002.
By way of background, Claimant had previously moved for an order striking the State's affirmative defenses and the State moved for leave to amend its second affirmative defense. In reviewing those motions, this Court noted an inconsistency between the State's denial of receipt of a notice of intention compared to Claimant's representation that a notice of intention was served on the Attorney General's office on October 19, 2001. (Jones v State of New York, Ct Cl, October 22, 2002, Lebous, J., Claim No. 106213, Motion Nos. M-65550 & M-65680). Claimant had provided the Court with a copy of a certified mail receipt card date stamped by the Attorney General's office, but failed to provide a copy of the Notice of Intention. Consequently, the Court questioned the State's denial of receipt of a notice of intention and, assuming such service, whether that notice of intention related to the allegations of this Claim. As such, Clamant's motion to strike the State's First and Second Affirmative Defenses were denied without prejudice.


In response to this Order to Show Cause, the State conducted further investigation into its files and now concedes that it did in fact receive a Notice of Intention by certified mail, return receipt requested on October 19, 2001. (Affirmation of Joseph F. Romani, AAG, ¶ 11). The State asserts that the allegations of the Notice of Intention are different from those contained in this Claim, with one exception noted below, and that therefore the Claim should be dismissed as untimely with respect to the remaining allegations. (Affirmation of Joseph F. Romani, AAG, ¶ ¶ 14 & 15).


In order to address the State's argument a comparison between the Notice of Intention and this Claim is warranted. The State has submitted a copy of the Notice of Intention which states, in pertinent part, as follows:
verbal harassment and medical neglect by RN refusing to admonish medication to me and purgerious statements by RN and breach of security of RN's employed under DOC stating I have HIV and calling me homosexual etc and giving out my home phone number and address by counselor. Due to these employees unprofessional conduct over a period of time have caused me mental anguish, loss of sleep, shakes, anxiety paranoid to RN etc and might sue in the future. Also medical neglect for staff failure to perform surgery on painful lipoma growth on the back of neck and head.

(State's Exhibit F).[1]


This Court's previous description of the allegations of this Claim was as follows:
[t]he Claim appears to cover a time span commencing in April 2001 and running through July and October of 2001. More specifically, the alleged misconduct by Nurse Dyal at the Facility is alleged to include failing to administer medication; using profane language; terminating or failing to conduct sick call; and some alleged misconduct relating to Claimant's TB test. Nurse Dyal's alleged acts and/or omissions are alleged to have occurred on April 30, 2001 and July 26, 27 & 30, 2001. The allegations of misconduct against Dr. Alves for denying a general surgery consult occurred on October 10, 2001.

(Jones v State of New York, Ct Cl, October 22, 2002, Lebous, J., Claim No. 106213, Motion Nos. M-65550 & M-65680, p 2).


The State argues that the only overlapping allegation, other than the general time period, is the alleged lack of treatment of the lipoma and in fact concedes that this Claim was timely with respect to that sole allegation. With respect to the remaining allegations, however, the State argues that the allegations in the Claim are substantially different from those in the Notice of Intention and that therefore the remainder of the Claim should be dismissed as untimely.


In this Court's view, despite the obviously inartful nature of these pleadings, the Notice of Intention adequately describes most of the same allegations contained in this Claim, including

Nurse Dyal's actions of failing to administer medication and using profane language; as well as a lack of treatment and denial of a general surgery consult on October 10, 2001 in relation to the alleged lipoma. However, the Court cannot identify in the Notice of Intention any allegation that could be construed as relating to Nurse Dyal's alleged inactions relating to sick call or her alleged misconduct relating to a TB test as recited in the Claim.


Consequently, the Court finds that Claimant has come forward with proof establishing proper and timely service in compliance with CCA 10 & 11 with respect to Nurse Dyal's actions of failing to administer medication and using profane language, as well as a lack of treatment and denial of a general surgery consult on October 10, 2001 in relation to Claimant's alleged lipoma. However, the Court finds that the Notice of Intention did not contain any allegations relating to Nurse Dyal's alleged inactions relating to sick call or her alleged misconduct relating to a TB test and, thus this Claim is untimely with respect to those allegations.


Finally, the Court notes that Claimant has withdrawn the allegations contained in his Notice of Intention asserting a "[b]reach of security of RN's employed under DOC stating I have HIV and calling me homosexual etc and giving out my home phone number and address by counselor." (Claimant's Response to Order to Show Cause, ¶ 12; State's Exhibit F).


Accordingly, for the reasons stated above, it is ORDERED that in response to the Court's Order to Show Cause, Motion No. M-65935, that the State's First and Second Affirmative Defenses are stricken to the extent noted herein. The parties may proceed with discovery on the remaining allegations of this Claim.

December 11, 2002
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims




[1]The Court has not inserted "sic" to note each mistake in the document.