New York State Court of Claims

New York State Court of Claims

LANDMESSER v. THE STATE OF NEW YORK, #2002-030-001, Claim No. 101046


Inmate's claim alleging medical malpractice, negligence and ministerial neglect dismissed on timeliness grounds. Neither Notice of Intention or Claim served within 90 days of accrual as required. Service by registered mail, return receipt requested satisfies § 11 Court of Claims Act requirements. Dismissal on merits warranted as well, since no expert testimony, no showing of damage.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
By: ELYSE ANGELICO, Assistant Attorney General.
Third-party defendant's attorney:

Signature date:
January 4, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

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. 1989).
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., supra, at 6)," as well as when service is effectuated only by regular mail.
The Court has been unable to find a specific reported decision[1]
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, supra, 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 entirety.

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 prescriptions."[2]
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 " 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, 1999].
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 [
Ibid], and received them in "August or September".
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 glasses."

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 and treatment.
Rivers v State of New York, 159 AD2d 788, 789 (3d Dept. 1990), lv denied, 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 New York, 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 denied, 40 NY2d 804 (1976). A medical expert's testimony is necessary to establish, at a minimum, the standard of care. Spensieri v Lasky, 94 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 expert testimony.
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, supra; Kagan v State of New York, supra. 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.

January 4, 2002
White Plains, New York

Judge of the Court of Claims

[1] Without making a distinction between "registered" and "certified" the Court of Claims dismissed a claim on jurisdictional grounds because the claim was not timely received by the Attorney General's office, in contravention of § 11(a) Court of Claims Act. Macon v State of New York, Claim No. 103996 (unreported decision, July 16, 2001, Read, P.J.).
[2]All quotations are to trial notes or audio tapes unless otherwise indicated.