New York State Court of Claims

New York State Court of Claims

TAFARI v. THE STATE OF NEW YORK, #2003-031-013, Claim No. 103164, Motion No. M-65946


Conditions of Claimant's confinement, including failure to renew certain prescription medications during Claimant's short stays at Lakeview Shock Incarceration Correctional Facility for court appearances, were appropriate. Defendant's motion for summary judgment is granted.

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:
New York State Attorney General
BY: PAUL VOLCY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 3, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 4, were read on motion by Defendant for summary judgment:
1) Notice of Motion, filed October 9, 2002;
2) Affirmation of Paul Volcy, Esq., dated October 8, 2002, with attached exhibits;
  1. Affirmation [sic] of Injah Tafari, dated October 25, 2002, with attached exhibits;
4) Responding Affirmation of Paul Volcy, Esq., dated December 13, 2002, with attached exhibits;
Upon the foregoing papers, Defendant's motion is granted. This is Defendant's motion for summary judgment and dismissal of the claim in this matter. In his underlying claim filed on September 29, 2000, Claimant, Injah Tafari, alleges that, on three occasions, while being temporarily held for court appearances at Lakeview Shock Incarceration Correctional Facility ("Lakeview"), he was improperly denied the articles required for inmates in the Special Housing Unit ("SHU"), harassed, and denied prescription mental health medications. Specifically, Claimant alleges that he resided at Lakeview on three separate occasions: from Monday, October 4, 1999, through Friday, October 8, 1999; from Tuesday, October 26, 1999, through Tuesday, November 2, 1999; and from Monday, March 20, 2000 to Tuesday, March 21, 2000.

In its motion papers, Defendant argues that Claimant has failed to set forth a claim upon which relief can be granted and has failed to assert his claim in a timely manner.

October 4, 1999 through October 8, 1999

During this period, Claimant alleges in paragraph 9 of his claim, that his sneaker laces were confiscated, his toilet was "extremely" dirty, his cell window was broken, he was denied bedding, supplies, showers, and that personal items were not issued to him within 72 hours (a requirement of 7 NYCRR §302.2). Claimant goes on to allege, in paragraph 10 of his claim, that during this time, he was threatened and harassed by guards and was not fed. Finally, in paragraph 22 of the claim, Claimant alleges that these conditions caused him to contract a cold, with which he suffered for 16 days.

In support of their respective positions on this motion, both Claimant and Defendant have submitted copies of the notice of intention, sworn to by Claimant on December 10, 1999. Disturbingly, the copy submitted by Claimant references this October 4 through October 8, 1999 period, while the copy of purportedly the same document submitted by Defendant does not. Upon closer scrutiny, it appears to the Court that Claimant has "doctored" the copy of this notice of intention that he submitted to the Court. In any event, the notice of intention served upon the Attorney General makes no mention of a claim for the period of October 4 through October 8, 1999. Because Claimant did not serve a timely notice of intention upon the Attorney General concerning the incidents alleged in this time period, and because his claim was filed more than 90 days later in September of 2000, these matters are time-barred and Defendant's motion to dismiss the claim as it relates to these alleged events must be granted.

October 26, 1999 through November 2, 1999
Claimant alleges, in paragraph 13 of his claim, that during this time period, he was once again harassed by staff, denied his legal materials, denied meals, denied SHU items, and denied certain prescribed medications. He also alleges that he filed a grievance concerning these complaints. His notice of intention served upon the Attorney General makes mention of only the denial of the SHU items and the refusal to renew or refill his prescriptions. Only those matters set forth in the notice of intention to file a claim were preserved and, therefore, only claims relating to those matters are timely (see Gerwitz v State of New York (Ct Cl), Corbett, J., November 5, 2001, UID No. 2001-005-532).[1] With regard to the denial of SHU items, Claimant's concerns are not properly before this court and should have been addressed either administratively or through an Article 78 proceeding.(McCloud v State of New York (Ct Cl), Read, P.J., June 6, 2001, UID No. 2001-001-026).

With regard to his claim relating to Defendant's refusal to renew or refill his prescriptions, Defendant's memoranda generated in response to the grievance Claimant filed (Exhibits D and E) demonstrate that Claimant did not request the medication at issue until Saturday, October 30, 1999. The unrefuted affidavit of Registered Nurse Rosanna E. Nocero (Defendant's Exhibit F) indicates that Lakeview did not have the requested medications on site, and that Claimant would not be held at Lakeview long enough for the medications to be ordered and delivered to him there. Additionally, Defendant correctly points out that Claimant's notice of intention fails to set forth how he was injured by not having his medications filled for the few days that he remained at Lakeview. Claimant's notice of intention is, therefore, defective and his claim relating to Lakeview's failure to refill or renew his prescriptions is untimely (Patterson v State of New York, 54 AD2d 147, affd 45 NY2d 885). For these reasons, Defendant's motion relating to those portions of the claim pertaining to October 26 through November 2, 1999 must be granted.
March 20 and 21, 2000
Claimant's May 24, 2000 notice of intention indicates that, at 7:30 P.M. on March 27, 2000, he was denied his mental health medications and was not fed. In paragraph 17 of his claim, however, claimant alleges that these events occurred on March 20, 2000. He also alleges in paragraph 17 of his claim, that he was denied his medication on the next morning, March 21, 2000. Even assuming Claimant's inconsistency relating to the accrual dates was a harmless error, the events of the following morning were not mentioned in Claimant's notice of intention and were, therefore, not preserved. In any event, Claimant again fails to indicate how he was injured by not receiving food or medication on the evening of March 20, 2000 or by not getting his medication on the morning of March 21, 2000. As stated above, this factor alone is a basis for granting Defendant's motion. Additionally, Defendant's Exhibit G indicates that Claimant was not required to have this medication and that no medication arrived with Claimant from his transferring facility. Moreover, Defendant correctly asserts that 7 NYCRR § 302.2(e)(1)(iv) gives a facility up to 24 hours to secure medications if they are deemed necessary, and that Claimant was not in the facility for that length of time. For these reasons, Defendant's motion relating to this period of time, too, must be granted.

Accordingly, for the reasons stated above, it is hereby:

ORDERED, that Defendant's motion for summary judgment is granted and the claim is dismissed in its entirety. The Clerk is directed to close the file.

April 3, 2003
Rochester, New York

Judge of the Court of Claims

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