New York State Court of Claims

New York State Court of Claims

WILSON v. THE STATE OF NEW YORK, #2004-013-056, Claim No. 108294, Motion No. M-68784


Permission to file late claim is denied and the claim is dismissed sua sponte. No valid cause of action.

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:
Attorney General of the State of New York
BY: JAMES L. GELORMINI, ESQAssistant Attorney General
Third-party defendant's attorney:
Signature date:
December 3, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


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 206.5[c]).

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 Defendant.[1] 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 (PT).[2] 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 treatment.

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."

More puzzling.

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, 2002.

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 1).

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 challenge!

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.

December 3, 2004
Rochester, New York

Judge of the Court of Claims

  1. [1]Similarly, the caption of the claim is amended sua sponte to name only the State of New York as Defendant.
  2. [2] This would appear to be the "grievance" Claimant alleges she filed on March 7, 2003.