New York State Court of Claims

New York State Court of Claims

WILKINS v. THE STATE OF NEW YORK, #2004-009-26, Claim No. 108228-A, Motion No. M-67860


Synopsis


Case Information

UID:
2004-009-26
Claimant(s):
ROBERT WILKINS
Claimant short name:
WILKINS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108228-A
Motion number(s):
M-67860
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
ROBERT WILKINS, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Mary R. Humphrey
Senior AttorneyOf Counsel.
Third-party defendant's attorney:

Signature date:
April 20, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has brought this motion seeking an order dismissing the affirmative defenses alleged by defendant in its answer.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit in Support, with Exhibits 1,2


Affirmation in Opposition, with Exhibits 3

Affirmation in Response from Claimant 4

Claimant has filed this claim seeking damages for personal injuries allegedly occurring while he was in the custody of the Department of Correctional Services and housed at Marcy Correctional Facility. The claim is based upon allegations of negligence, and possibly medical malpractice.

In his claim, claimant alleges that he was hospitalized from March 15, 2003 to April 8, 2003 at Oneida Correctional Facility, and was then hospitalized from May 13, 2003 to May 27, 2003 at Mid-State Correctional Facility. He further alleges that a diagnosis of Mycobacterium gordonae was made on May 16, 2003 by the Department of Pathology at SUNY Upstate Medical University. He then alleges that a problem with the water supply at Marcy Correctional Facility was acknowledged by facility officials on June 10, 2003.

As set forth in defendant's affirmation in opposition (see Item 3), claimant served a notice of intention to file a claim upon the Attorney General on August 6, 2003 and subsequently served his claim upon the Attorney General on September 4, 2003. According to the records of this Court, the claim was filed with the Clerk of the Court of Claims on September 4, 2003.

In its verified answer, defendant has asserted three affirmative defenses which claimant, in this motion, now seeks to have dismissed. These affirmative defenses all contend that this Court lacks jurisdiction to hear this claim based upon an alleged failure to serve a notice of intention within 90 days of accrual of the cause of action (first affirmative defense), an alleged failure to serve the claim upon the Attorney General within 90 days of accrual (second affirmative defense), and/or an alleged failure to file the claim with the Clerk of the Court of Claims (third affirmative defense).

With regard to the third affirmative defense, as set forth above, the claim has now been filed with the Clerk of the Court of Claims. Defendant's attorney has acknowledged this fact in her answering affirmation (see Item 3, par. 10), and has withdrawn this affirmative defense. The Court must therefore address the remaining two affirmative defenses asserted by defendant.

Pursuant to Court of Claims Act § 10(3), a claim asserting a cause of action based upon negligence must be served upon the Attorney General and filed with the Clerk of the Court of Claims within 90 days after accrual of such claim, unless a notice of intention to file a claim is served upon the Attorney General within such time period. If a notice of intention to file a claim is so served, the claim must then be served and filed within two years of the date of accrual.

As set forth in the first two affirmative defenses, defendant argues that neither the notice of intention nor the claim were served within 90 days of accrual of this cause of action.

In his claim, claimant alleges that his claim accrued on August 28, 2003 (see par. 4). Based upon the allegations contained in the claim, however, it is clear that this claim accrued at an earlier date. Based upon claimant's initial medical confinement which began on March 15, 2003, defendant contends that the circumstances causing the need for hospitalization must have occurred prior to March 15, 2003, rendering service of both the notice of intention to file a claim and the claim untimely.

The gravamen of this claim, however, is that claimant's illness was caused by a contaminated water supply at Marcy Correctional Facility, and that officials at Marcy Correctional Facility were negligent in failing to protect inmates at the facility from the effects of this contaminated water. It could therefore be argued that claimant's cause of action did not accrue until officials at Marcy Correctional Facility acknowledged the problems with the water supply on June 10, 2003, as alleged in the claim. Furthermore, at the earliest, a cause of action for these alleged acts of negligence would not have accrued until claimant was diagnosed with the disease allegedly caused by the contaminated water supply. Claimant has submitted with his motion a copy of the report from the Department of Pathology at SUNY Upstate Medical University, dated May 16, 2003, documenting his diagnosis (see Exhibit B to Items 1,2). Defendant has not disputed the accuracy of these dates.

Under either of these scenarios, the notice of intention served by claimant upon the Attorney General on August 6, 2003 was served within 90 days of accrual and is therefore timely. Additionally, the claim, which was subsequently served upon the Attorney General and filed with the Clerk of the Court of Claims on September 4, 2003, was obviously served and filed within two years following accrual of the claim, and is also timely.

Finally, to the extent that claimant has asserted a claim for medical malpractice, any hospitalization of claimant that occurred prior to accrual of his cause of action would be covered by the continuous treatment doctrine under CPLR § 214-a, assuming that claimant can establish that such hospitalization was causally related to the circumstances forming the basis of his negligence claim.

Based on the foregoing, it is

ORDERED, that Motion No. M-67860 is hereby GRANTED; and it is further

ORDERED, that the three affirmative defenses asserted by the defendant in its verified answer dated October 10, 2003 are hereby stricken.



April 20, 2004
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims