Scott Landmesser, the Claimant herein, alleges in Claim Number 101046 that
Defendant's agents negligently failed to preserve his medical records and
otherwise provide medical services while he was incarcerated at Sing Sing
Correctional Facility (hereafter Sing Sing). Trial of the matter was held at
Sing Sing on December 7, 2001.
As an initial matter, Defendant made a motion to dismiss the claim based upon
its first affirmative defense, a failure to properly serve the claim, pursuant
to §11 Court of Claims Act. The claim was served on the Attorney General
by registered mail, rather than by certified mail as set forth in the statute.
The filing and service requirements contained in §§10 and 11 Court of
Claims Act are jurisdictional in nature and must be strictly construed.
Finnerty v New York State Thruway Auth.
, 75 NY2d 721, 722-723 (1989).
Service upon the Attorney General by ordinary mail is generally insufficient to
acquire jurisdiction over the State, unless the State has failed to properly
plead jurisdictional defenses or raise them by motion. §11(c) Court of
Claims Act; Edens v State of New York
, 259 AD2d 729 (2d Dept. 1999);
Philippe v State of New York
, 248 AD2d 827 (3d Dept. 1998).
Additionally, the Claimant has the burden of establishing proper service.
Boudreau v Ivanov
, 154 AD2d 638, 639 (2d Dept.
In light of these service limitations, dismissals on jurisdictional grounds
have been entered where service has been made by United States Postal Service
express mail without a receipt having been requested, [
Schaeffer v State of New York
, 145 Misc2d 135 (NY Ct Cl 1989)] which
another Judge viewed as "...the ‘essence of proper service under section
11.' (Brewer v State of New York, Ct.Cl., June 22, 1989, Hanifin, J.,
, at 6)," as well as when service is effectuated only by regular
The Court has been unable to find a specific reported
concerning the effectiveness of registered, versus certified, mail to establish
jurisdiction over the State. The usual error discussed is where a Claimant
serves the Attorney General by regular mail. The Court notes that registered
mail is a service provided by the United States Postal Service akin to certified
mail and, indeed, stricter, because not only must the addressee sign the
receipt, but the mail is monitored from the moment it is placed in the custody
of the Postal Service until its delivery. Schaeffer v State of New York
, at 138. Accordingly, in this Court's view, service by registered
mail, return receipt requested satisfies the requirements of § 11(a) Court
of Claims Act and the Defendant's motion is denied.
Defendant also made a motion to dismiss based upon its second affirmative
defense alleging that the notice of intention to file claim, or claim, was not
served within ninety (90) days of accrual, as required by §§ 10 and 11
Court of Claims Act. This motion was based on a date of accrual of April 6,
1999, when Claimant's application for administrative resolution of his claim was
decided. On the form received by the Claimant, only the section noting his
disagreement with the Grievance Resolution Committee's Response is checked, not
the portion indicating he wished to appeal the response.
The Claimant argued that the date of accrual was on June 21, 1999, when the
response indicating he had not asked for a Superintendent's Appeal of his
grievance was sent to him. In that response the Grievance Superintendent notes
that no appeal was ever processed because the Claimant had not indicated that he
was appealing to the Superintendent. [Claim No. 101046, Inmate Grievance
Resolution Committee Response dated April 6, 1999; Memorandum from S. Kober,
Grievance Supervisor to Scott Landmesser, dated June 21, 1999]. The Notice of
Intention appears to have been served on the Attorney General on July 21, 1999.
This Court finds that the claimant's administrative remedy was exhausted on
April 6, 1999, not June 21, 1999. Accordingly the Notice of Intention was not
timely served, nor was the claim, and the claim is, therefore, dismissed in its
The Court also notes this Claim would be subject to dismissal on the merits in
any event. Claimant testified that after an eye examination at Elmira
Correctional Facility (hereafter Elmira) in February, 1999, he was issued a
prescription for reading glasses which was not filled at that time. On or about
March 15, 1999 he was transferred to Sing Sing, where he was seen by the
"receiving Nurse...and asked about any medications...[he was] taking and any
He advised medical personnel of his prescription for reading glasses of the
bifocal type. When he did not receive the prescription requested after a couple
of attempts to get it, he filed a grievance, indicating he wished "...to find
out who I fill the disbursement out to for the glasses so the prescription can
be processed." [Claim No. 101046, Inmate Grievance Complaint]. The Response
indicated that his prescription and a disbursement form from Elmira were being
forwarded, and that his glasses would be ordered. The Response stated "this
will probably take a month or more, as there are many variables." [Claim No.
101046, Inmate Grievance Resolution Committee Response dated April 6,
According to his Ambulatory Health Record (hereafter AHR) some four months
later, it appears the fact of the eye exam at Elmira was noted, as were the
Claimant's comments to the medical personnel making the notes that he had never
received the eyeglass prescription. [Claimant's Exhibit "1", AHR dated July 13,
1999.] On July 15, 1999 he was referred for an additional eye exam, with the
notations that he had been examined at Elmira in February, 1999 given a
prescription for bifocals at his own expense, "...but...[claimant] had no money
in account so no glasses were ordered. There is no copy of consult in his chart
no copy of prescription. Elmira claims they sent the info but SSCF has never
received it. Can we have inmate examined here, he is still...[complaining of
headache], blurred vision." [Claimant's Exhibit "1", NYSDOCS Request and Report
of Consultation, dated July 15, 1999]. It appears he was prescribed the
bifocals on August 2, 1999 [
], and received them in "August or
On cross-examination, the Claimant agreed that he essentially had "20/20"
vision, and had he not wanted to have the metal frame bifocals, he was entitled
to New York State issued frames. He indicated he had refused the New York State
issued frames because they had broken in the past when he did his assigned work
"in maintenance". He also indicated that he had been hospitalized for headaches
in "1992 or 1993", and that he "still gets migraines, even with these
It is "fundamental law that the State has a duty to provide reasonable and
adequate medical care to the inmates of its prisons," including proper diagnosis
Rivers v State of New York
, 159 AD2d 788, 789 (3d Dept. 1990), lv
, 76 NY2d 701 (1990).
In a medical malpractice claim, the Claimant has the burden of proof and must
prove (1) a deviation or departure from accepted practice and (2) evidence that
such deviation was the proximate cause of the injury or other damage. A cause
of action is premised in medical malpractice when it is the medical treatment,
or the lack of it, that is in issue. A Claimant must establish that the medical
care giver either did not possess or did not use reasonable care or best
judgment in applying the knowledge and skill ordinarily possessed by
practitioners in the field. The "‘claimant must [demonstrate] that the
physician deviated from accepted medical practice and that the alleged deviation
proximately caused his...injuries' (
Parker v State of New York
, 242 AD2d 785, 786...)." Auger v State of
, 263 AD2d 929, 931 (3d Dept. 1999). Without such medical proof, no
viable claim giving rise to liability on the part of the State can be sustained.
Hale v State of New York
, 53 AD2d 1025 (4th Dept. 1976), lv
, 40 NY2d 804 (1976). A medical expert's testimony is necessary to
establish, at a minimum, the standard of care. Spensieri v Lasky
NY2d 231 (1999).
If a claim can be read to allege simple negligence, or medical negligence, then
the alleged negligent omissions or acts by the State's employees can be readily
determined by a fact finder using common knowledge without the necessity of
Coursen v New York Hospital-Cornell Medical Center
, 114 AD2d 254, 256
(1st Dept. 1986). Similarly, the State may be found liable for ministerial
neglect if its employees fail to comply with an institution's own administrative
procedures and protocols for dispensing medical care to inmates. Kagan v
State of New York
, 221 AD2d 7,10 (2d Dept 1996).
In this case, only the testimony of the Claimant has been presented in support
of any of his claims. No competent medical evidence was presented, through a
treating physician or an expert witness whose opinion was based upon the
available medical records, to support any allegation of medical malpractice.
There is no medical evidence on any medical issue and thus no proof that
accepted standards of care were not met.
From this record there is no indication that the actions of medical care givers
amounted to simple negligence or ministerial neglect.
Coursen v New York Hospital
; Kagan v State of New
. There has been no showing that any delay in
procuring the bifocal lenses the Claimant preferred to those offered by the
State caused him any actual harm. While the Court appreciates the Claimant's
frustration with obtaining the specific glasses he desired, any delay is simply
not actionable here. To the extent the claim can be read to assert such
theories, any cause of action for negligence or ministerial neglect would also
be dismissed on the merits.
Claim Number 100415 is dismissed in its entirety.
Let Judgment be entered accordingly.