New York State Court of Claims

New York State Court of Claims

HERMAN v. THE STATE OF NEW YORK, #2003-016-046, Claim No. 106343, Motion No. M-66450


Inmate's motion to add cause of action for deliberate indifference to claimant's medical needs was denied.

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):

Alan C. Marin
Claimant's attorney:
Jorge Herman
Defendant's attorney:
Eliot Spitzer, Attorney General
By: Jeane L. Strickland Smith, Esq.No Appearance
Third-party defendant's attorney:

Signature date:
June 17, 2003
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Jorge Herman's claim arises from an incident in which he fell from his top bunk at Mid-Orange Correctional Facility while sleeping. His notice of motion refers to this application as one for permission to amend the claim "to add a fourth cause of action for punitive damages . . ." However, a review of Mr. Herman's motion papers and the claim itself indicates that this is in fact a motion to add a cause of action for deliberate indifference to claimant's medical needs, and that he seeks punitive damages with regard to his extant causes of action as well as the proposed new one. With regard to punitive damages, "it has long been held that as a matter of public policy punitive damages may not be assessed against the State . . ." Matagrano v State of New York, Ct Cl dated November 8, 2002 (claim no. 103128, motion no. M-65769, Collins, J.); Sharapata v Town of Islip, 56 NY2d 332, 452 NYS2d 347 (1982).

With regard to the proposed deliberate indifference cause of action, such is based on an assertion that claimant should not have been placed in a top bunk because he has high blood pressure.[1]

A cause of action based upon deliberate indifference to an inmate's medical needs was recognized by the United States Supreme Court in Estelle v Gamble, 429 US 97 (1976), where it was held that "a deliberately indifferent failure by State prison officials to provide adequate medical care to an inmate constituted cruel and unusual punishment under the Eighth Amendment giving rise to a civil rights cause of action under 42 USC § 1983. . . However, it is settled law that [the Court of Claims] is not the appropriate forum as a 42 USC § 1983 lawsuit cannot be pursued against the State of New York in the Court of Claims . . . An inmate can pursue a constitutional claim of cruel and unusual punishment under the Eight Amendment due to deliberate indifference to his medical needs by way of a CPLR article 78 proceeding . . . [which] must be maintained in Supreme Court, not the Court of Claims . . ." De La Rosa v State of New York, 173 Misc 2d 1007, 1008-1009, 662 NYS2d 921, 923 ( Ct Cl 1997) (citations omitted).

However, referring to Brown v State of New York, 89 NY2d 172, 652 NYS2d 223 (1996), the Court in De La Rosa went on to state that "[i]t would appear that New York State's constitutional provision prohibiting cruel and unusual punishment meets the Brown criteria for permitting a [State] constitutional tort claim for money damages in [the Court of Claims] when there is a deliberately indifferent response by prison officials to the medical needs of inmates." 173 Misc 2d at 1010; 662 NYS2d at 924.

In the instant case, however, even assuming that such a cause of action exists in this Court, claimant has failed to plead facts to support a claim of deliberate indifference to his medical needs. He does not assert that defendant failed to treat him for high blood pressure – in fact, he notes that he receives medication for such condition. Rather, he asserts – without any explanation – that because of his high blood pressure, he should not have been placed in a top bunk. Nor is there a plausible assertion that defendant knew or disregarded the risk of him falling because of his high blood pressure; he provides no explanation as to any connection between his blood pressure and his fall – which occurred while he was sleeping. In sum, I find that the proposed amended claim fails to adequately plead a cause of action for deliberate indifference to medical needs.

Accordingly, having reviewed the submissions[2], IT IS ORDERED that motion no. M-66450 be denied.

June 17, 2003
New York, New York

Judge of the Court of Claims

  1. [1]It should be noted that such assertion is also made in connection with claimant's first cause of action, in which he asserts that he was not properly screened before being placed in a top bunk.
  2. [2]Along with the pleadings, the Court reviewed claimant's notice of motion with affidavit in support, "Personal Affidavit for Leave to Serve an Amended Complaint . . ."; memorandum of law, proposed amended claim, proposed order and exhibits A-E. Defendant filed no papers on this motion.