New York State Court of Claims

New York State Court of Claims

PIZARRO v. THE STATE OF NEW YORK, #2003-032-098, Claim No. 106924, Motion Nos. M-66898, CM-66935


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:
Jose Pizarro, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Belinda A. Wagner, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
September 26, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


This claim seeks compensation for physical injuries that claimant Jose Pizaro allegedly suffered on two separate occasions in the same manner. Claimant fell from a sleeping bunk, which he alleges was poorly-designed and injured his right hand. He alleges that he was denied adequate medical treatment for this alleged injury. The State's answer contained general denials and several affirmative defenses: untimeliness, contributory negligence, assumption of the risk, and immunity for discretionary determinations.

Claimant has now brought a "Motion to the Answer of the Defendant that is either without merit or contains matters that should be the subject of a trial" (Notice of Motion). It appears from the moving papers that claimant is seeking to rebut the allegation that his claim is untimely and to object to the other affirmative defenses on the ground that they are unfounded (contributory negligence) or require trial (assumption of the risk, immunity for discretionary determinations). An answer is merely a responsive pleading that establishes the facts and legal issues that are in dispute. No motion is required in response to an answer unless claimant seeks to strike one of defendant's affirmative defenses.

Defendant has cross moved for dismissal on the ground that the claim is untimely. With respect to actions for personal injury resulting from the negligence of State officials, a notice of intention must be served or a claim must be filed and served within ninety days of the claim's accrual. If a notice of intention is employed, the claim must be served and filed within two years after it accrued (Court of Claims Act §10[3]). Claimant fell from the cell bunk on December 4, 1999 and July 4, 2000, but the alleged defective design of the bunk was not referenced in his notice of intention, which was served on January 8, 2001 (Wagner affirmation, Exhibit 1). If this cause of action had been included in the notice of intention, it would have been time-barred, and it is even further untimely since it was not asserted until the claim was filed and served in November 2002.

With respect to the cause of action for medical negligence, claimant asserted in his notice of intention that on October 19, 2000, he was told that he needed to have surgery on his right thumb but that the surgery had not been performed. In his claim, he recites that in April 2001 he had surgery on his hand and a plate and screws were inserted. He also lists a series of treatments and measures that were taken both before the surgery and afterwards, up to and including September 26, 2002. On that date, claimant asserts, he was taken to St. Joseph's Hospital for therapy treatment and the question of whether the plate and screws should be removed was discussed (Claim, ¶36).

In the submission on his motion, claimant asserts that his claim was timely because it was filed within 120 days of the accrual of the action, which he identifies as October 19, 2000 (Pizarro affidavit, ¶5).[1] As his notice of intention was served on January 8, 2001, it would have been timely if he is correct about the accrual date. His claim, however, was served and filed in November 2002, more than two years after that accrual date.

There is an additional problem with this claim. The wrong alleged in the notice of intention (failure to provide needed surgery) is obviated by the information contained in the claim, that the surgery was performed in April 2001. If claimant is seeking compensation for the period of time between the determination that surgery was needed, October 19, 2000, and the date of the surgery, he would have had to either serve a notice of intention or file and serve a claim within ninety days of the latter date. This was not done. As defense counsel notes, "This is not a case of continuing medical treatment but rather a claim of delay" (Wagner affirmation, ¶11). Any delay in claimant's receipt of appropriate surgery for his condition ended in April 2001.

Claimant's motion is deemed a motion to strike one or more affirmative defenses and is denied. Defendant's motion is granted, and Claim No. 106924 is dismissed.

September 26, 2003
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motion "to the Answer of the Defendant" and defendant's cross-motion for an order of dismissal:
1 Notice of Motion and supporting affidavit of Jose Pizarro, pro se

2. Notice of Cross Motion and supporting affirmation of Belinda A. Wagner, Esq., AAG, with annexed Exhibits

Filed papers: Claim; Answer

[1] Claimant erroneously refers to CPLR 306-b as establishing the time period in which his claim had to be initiated. That statute does not apply to Court of Claims practice, nor does it establish a Statute of Limitations. Instead, it provides that a summons and complaint or summons with notice must be served on a defendant within 120 days after they are filed. Neither a summons nor a complaint are used to institute an action in the Court of Claims.