On September 15, 2004, the following papers were read on Claimant's motion for
permission to file a late claim:
Notice of Motion and Affidavits and Exhibits Annexed
Opposing Affirmation and Exhibits Annexed
Affidavit of Julie E. Sakach
Affidavit of Frank Simpson
Affidavit of James Staebell
Filed Papers: Claim
Upon the foregoing papers, this motion is denied and Claim No. 108294 is
dismissed sua sponte.
Claimant moves for permission to file a late claim pursuant to Court of Claims
Act Section 10(6). The moving papers contain deficiencies and errors, and the
factual assertions therein are uncategorically disputed.
First, the underlying incident alleged is an injury allegedly sustained by
Claimant when she was an inmate at the Albion Correctional Facility (Albion) on
November 11, 2002. On that date she alleges that she was mowing lawns at
Albion, and when she went to get off the riding
lawnmower her foot got caught in a mower belt as there was no safety guard over
the mower belts, and she allegedly fell onto the gravel ground and landed on her
tailbone. She alleges that she sought medical treatment at the facility and was
placed on certain medical restrictions. As a second cause of action, Claimant
alleges that she suffered further pain in her lower back "due to the delay on
the part of the Albion Correctional Facility to begin the required physical
therapy treatment as prescribed by their medical staff."
In her supporting affidavit, Claimant asserts that she filed a "grievance" on
March 7, 2003 with the Attorney General of the State of New York. She also
asserts that she filed a claim with the Court of Claims on September 15 [sic -
actually September 17], 2003, assigned Claim No. 108294, which she now
acknowledges is late. This was all accomplished when Claimant was appearing pro
se. It appears from reviewing the claim and papers attached thereto, as well as
the Clerk's file, that Claim No. 108294 was never served upon the Defendant. I
infer the same from several sources: first, no affidavit of service of the claim
is appended to the claim; second, no answer was served or filed by the
Defendant, and third, no proof of service of the claim is contained in the
Clerk's file despite the October 3, 2003 letter from the Clerk acknowledging
filing of the claim and which highlights in bold a reminder that Claimant should
file proof of service if she had not already done so (see 22 NYCRR
Given the above, I, sua sponte, dismiss Claim No. 108294 because Claimant
failed to obtain personal jurisdiction over the Defendant when she failed to
serve the claim.
Accordingly, I now have Claimant's late claim application, prepared by her
counsel. Before even addressing the substance of the motion, I note that the
Claimant's papers herein all incorrectly name as Respondent [sic - should be
Defendant] the "Albion Correctional Facility, Its Servants, Agents and/or
Employees." Those are all improperly named defendants, as the State of New York
is the only proper defendant in this Court. Accordingly, the caption of the
motion herein is amended to substitute the State of New York as
Additionally, the proposed "Notice
of Claim" [sic - should be claim], also fails to include a total sum claimed,
which inferentially could be seen as a jurisdictional defect (Lepkowski v
State of New York
, 1 NY3d 201, 208-209; Court of Claims Act §11[b]).
Nonetheless, I will consider Claimant's application.
Defendant acknowledges the service on March 10, 2003 of a notice of intention
to file a claim (Exhibit 5 to the Gelormini affirmation) alleging that Claimant
had not received prescribed physical therapy
She alleges that she was told by the
physical therapist on November 11, 2002, that she needed PT twice a week for
four weeks, and that again on February 26, 2003 the physical therapist allegedly
told her that she needed PT at least three times a week until further notice.
As of the date of the notice of intention on March 6, 2003 she contends that she
had not been seen again or received the prescribed PT.
Defendant contends, without any dispute or comment by the Claimant or her
counsel, that the notice of intention preserved her right to sue concerning
alleged delays in receiving physical therapy, and thus this motion is
unnecessary, as Claimant still has the time under the statute to serve and file
her claim alleging such cause of action without leave of the Court. Since a
notice of intention was served on March 10, 2003, alleging a delay in receiving
prescribed physical therapy starting on November 11, 2002, continuing to
February 26, 2003, and continuing to the date of the notice of intention,
pursuant to Court of Claims Act §10(3), Claimant would have two years from
the most recent date of the continuing failure to provide prescribed PT, to wit,
March 6, 2003, to serve and file her claim. The Defendant acknowledges as much.
Since Claimant has the opportunity to proceed and pursue these claims until on
or about March 6, 2005, without the necessity of court intervention, that
portion of her motion is denied.
The notice of intention makes no mention of the purported incident with the
lawnmower, and thus I will address the motion only as it pertains to the alleged
incident regarding the riding lawnmower on November 11, 2002.
A proffered excuse for the failure to timely file her claim was that Claimant
was "unaware of the severity of her injuries and the necessity of continued
physical therapy once she was able to obtain it." This excuse pertains, of
course, only to those allegations regarding the delay in providing physical
therapy, and does not address the delay relating to the alleged incident of
November 11, 2002 and the riding lawnmower.
Counsel asserts that the personal injuries were the result of negligence by the
Defendant in failing to properly maintain its equipment in a safe and proper
manner, due to its negligence, carelessness and misconduct, as well as the delay
in medical treatment. Claimant was released from Albion in January 2004, and
she was then purportedly able to procure additional medical treatment and
consult with a specialist regarding the extent of her injuries and a course of
Counsel asserts that there would be no prejudice to the Defendant in that it
could investigate due to the fact that "the accident report and other pertinent
documents have been preserved." Notably, no copies of such documents are
supplied by Claimant. Counsel also asserts that Albion "had actual notice of
the accident as the Claimant reported to the medical facility for treatment in
connection with the injury she sustained on November 11, 2002." Notably, no
medical records for November 11, 2002 supporting such contentions are supplied
by Claimant. Counsel conclusorily finds that the claim of negligence is
meritorious due to Albion's purported failure to properly maintain its
equipment, an exemplar of circular reasoning.
It is the supposed events of November 11, 2002, that Defendant skewers with an
abundance of sworn affidavits. First, the affidavit of Julie E. Sakach, an
inmate records coordinator at Albion, avers that she has searched her records
and has not found either an Unusual Incident Report or a Report of Inmate Injury
with respect to the alleged incident of November 11, 2002. Beyond that, she
attached a record of program assignments reflecting that Claimant was
re-assigned from her grounds crew position on November 3, 2002 to the
pre-release program, to an office setting type assignment, at which she was
assigned on November 11, 2002, the date of this incident (Exhibit 1 to the
Sakach affidavit). This is supported by a payroll record maintained by Albion
for Claimant which shows payment for work on November 11, 2002 in the
pre-release program (Exhibit 2 to the Sakach affidavit).
Second, the affidavit of Correction Officer (CO) Frank Simpson, the
supervising officer for a grounds crew of which Claimant was a member, avers
that in November 2002 she worked for no other grounds crew except for the crew
he supervised. He avers, and supplies a log book entry confirming, that on
November 11, 2002, the crew he supervised did not mow lawns, but picked up
bags and trash (Exhibit 3 to the Simpson affidavit). Puzzling.
Moreover, and totally devastating to Claimant's credibility, CO Simpson avers
under oath, that "No riding lawnmowers were in use at Albion Correctional
Facility in 2002."
Finally, James Staebell, a nurse administrator at Albion, reviewed Claimant's
medical records which reflect no entries for November 11, 2002, or any
date in November subsequent to November 11, except for a November 15, 2002
consultation with a physical therapist (Exhibit 4 to the Staebell affidavit).
Interestingly, the referral to a physical therapist was made on November 1,
2002, ten days before this supposed incident. The medical records
maintained by the Defendant, commonly referred to as the Ambulatory Health
Records, are totally devoid of any visit, any inmate accident, or any record
whatsoever relating to the purported incident or injury incurred November 11,
Moreover, as Defendant has established, Claimant made complaints about her back
on November 1, 2002, some ten days prior to the alleged incident. Thus it is
contended, without any demurral, that the back complaints preceded the alleged
incident (and indeed the notice of intention avers that x-rays of Claimant's
back were taken in October 2002, even prior to the complaints of November
Given these factual disputations, I would have expected at least a reply
affidavit from Claimant attempting to explain the discrepancies and the
inevitable effect this has on her credibility. Not a word in explanation or
Ergo, not an ounce of credibility. There are no supporting papers, by a
witness with personal knowledge or by documentary submission, of Claimant's
phantasmagorical allegations of falling off a riding lawnmower.
Since I find it hard to believe anything she has alleged, I find that I cannot
affirmatively exercise my discretion on behalf of this applicant. There is
nothing before me that could possibly lead me to believe that there is
reasonable cause to believe that a valid cause of action exists (Matter of
Santana v New York State Thruway Auth., 92 Misc 2d 1). The motion (which
some might deem frivolous) must be denied.