New York State Court of Claims

New York State Court of Claims

MASSILLON v. THE STATE OF NEW YORK, #2003-030-009, Claim No. 100470


Synopsis


Defendant's motion to dismiss for lack of notice of the location of pro se inmate's claim granted. Different correctional facilities. No Bill of Particulars clarifying location.

Case Information

UID:
2003-030-009
Claimant(s):
LUDERS MASSILLON
Claimant short name:
MASSILLON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100470
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
LUDERS MASSILLON, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: DEWEY LEE, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
April 3, 2003
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Luders Massillon, the Claimant herein, alleges in Claim Number 100470 that he was injured while he was incarcerated at Fishkill Correctional Facility (hereafter Fishkill) due to the negligence of Defendant's agents in placing him in an overcrowded and dangerous cell on or about March 7, 1999. Trial of the matter was to have proceeded at Fishkill on February 21, 2003.

On that date, the Defendant first made a motion to dismiss based upon a lack of notice to the State of the location of the incident in question. In his claim, Claimant had asserted that he was injured while incarcerated at Fishkill. As he began to testify, he asserted that the incident had occurred at Mid-State Correctional Facility (hereafter Mid-State), and had nothing to do with Fishkill. Defendant argued that there was prejudice to the State because of the lack of notice concerning the location where the claim arose.

Additionally, Defendant made a motion to preclude the Claimant from offering any evidence as to matters that were the subject of a Demand for A Verified Bill of Particulars served on Claimant on February 3, 2000. In a prior Decision and Order dated October 10, 2000, the Court had directed that such preclusion apply should Claimant fail to respond to the Demand for a Verified Bill of Particulars "within 30 days of service of this order." [
Massillon v State of New York, Claim No. 100470, Motion No. M-62120, O'Rourke, J., filed October 13, 2000]. No affidavit of service indicating that Defendant served this order upon Claimant, or any other indication of receipt by Claimant of the order, has been offered by Defendant. This Court directed Claimant to investigate his paperwork and provide proof that he had served the demanded Bill of Particulars upon the Attorney General's office within two (2) weeks.
Court of Claims Act §11(b) provides that a "...claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed...." As recently noted by the Appellate Division, "[i]t is axiomatic that the sufficiency of a claim rests solely upon the assertions contained therein, and defendant is not required to go beyond the claim in order to investigate an occurrence or ascertain information that should have been provided pursuant to Court of Claims Act §11...
(citation omitted)." Lepkowski v State of New York, ___AD2d___, 754 NYS2d 772, 774 (3d Dept 2003); see also, Cobin v State of New York, 234 AD2d 498, 499 (2d Dept 1996), lv to appeal dismissed, 90 NY2d 925 (1997), rearg denied, 91 NY2d 849 (1997). The statement describing the particulars of the claim should be of "sufficient definiteness to enable the State to investigate the claim promptly and to ascertain its liability under the circumstances." Cobin v State of New York, supra, at 499. The failure to include the location - especially where the deviation between the geographical location asserted and where the alleged claim actually arose is so extreme - is an omission warranting dismissal of the claim. The omission here is not the difference between one area of a boardwalk and another, for example, or the difference between picnic areas in a large park, both of which location descriptions have been deemed inadequate in other cases [See, respectively, Cobin v State of New York, supra; Schneider v State of New York, 234 AD2d 357 (2d Dept 1996)]. Instead, the omission is even more glaring, as it is the difference between the locations of correctional facilities in different parts of the State of New York.
Accordingly, the Court does not reach the Defendant's other motion with respect to preclusion of evidence based upon a failure to provide a Bill of Particulars, although it is also noted that no proof of service of a Verified Bill of Particulars by Claimant upon Defendant has been produced.

The Defendant's motion to dismiss is hereby granted and based upon lack of notice and undue prejudice to the State, Claim Number 100470 is hereby dismissed in its entirety.



Let judgment be entered accordingly.

April 3, 2003
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims