New York State Court of Claims

New York State Court of Claims

BONNETTE v. THE STATE OF NEW YORK, #2004-016-018, Claim No. 108849, Motion Nos. M-68082, M-68171


Synopsis


Case Information

UID:
2004-016-018
Claimant(s):
VAL BONNETTE
Claimant short name:
BONNETTE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108849
Motion number(s):
M-68082, M-68171
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Val Bonnette
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: James E. Shoemaker, Esq., AAG
Third-party defendant's attorney:

Signature date:
May 3, 2004
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In his underlying claim, Val Bonnette alleges that because of defendant's negligence, he slipped and fell on the Woodbourne gym floor on March 22, 2002. He also alleges that because of defendant's negligence, he was injured on June 15, 2002 when he fell while reaching for a pot which was "too high" while working on his mess hall job.

Mr. Bonnette also complains of the medical treatment provided to him after the incidents, commencing on March 22, 2002 and continuing through November 3, 2003. Such care was apparently provided at Woodbourne, Ellenville Regional Hospital (where surgery was performed on April 10, 2002), St. Agnes Hospital (where surgery was performed on June 13, 2003) and Albany Medical Center.

In motion no. M-68082, Mr. Bonnette moves to proceed as a poor person and to have counsel assigned. In motion no. M-68171, defendant moves to dismiss on the grounds that the claim was not timely served.Claimant's Motion to Proceed as a Poor Person and for the Assignment of Counsel

With regard to claimant's motion, there are no provisions in the Court of Claims Act concerning the prosecution of actions under poor person status, and thus the Civil Practice Law and Rules ("CPLR") govern. See Court of Claims Act §9, subdivision 9; Wilson v State of New York, 101 Misc 2d 924, 925, 422 NYS2d 347, 349 (Ct Cl 1979). Poor person status is authorized under CPLR 1101, which addresses, among other things, filing fees. In this case, claimant made an application pursuant to CPLR 1101(f) for a reduction in the filing fee required by Court of Claims Act §11-a(1). In an order of the Hon. Richard E. Sise filed February 19, 2004, it was found that claimant was entitled to a reduced filing fee of $35.00. Aside from the filing fee, there are no other fees in the Court of Claims and in fact, section 27 of the Court of Claims Act prohibits certain costs, fees and disbursements.

Nevertheless, payment of a particular item of expense as the need arises may be available at the proper time upon a showing of sufficient cause. Mapp v State of New York, 69 AD2d 911, 415 NYS2d 278 (3d Dept 1979); Wilson, supra. Because no such showing has been made by claimant at this time, his motion for poor person status must be denied.

Claimant has also requested that an attorney be assigned by the Court to litigate his claim on his behalf. Assignment of counsel is generally not available for civil cases. See Matter of Smiley, 36 NY2d 433, 369 NYS2d 87 (1975). Therefore, claimant's motion for assignment of counsel must also be denied.




Defendant's Motion to Dismiss

Bonnette served defendant with his claim on January 30, 2004. See ¶4 of the March 9, 2004 affirmation of James E. Shoemaker (the "Shoemaker Aff.") and exhibit A thereto. Defendant moves to dismiss on the ground that such service was untimely.

Defendant maintains that claimant served no notice of intention in this case.[1] In his opposition papers, claimant asserts that he did in fact serve a notice of intention on April 4, 2002 and he includes a copy of a certified mail return receipt indicating service on April 4, 2002. Such notice of intention does not allege negligence on the part of defendant with regard to the March 22, 2002 fall, but relates solely to medical care provided to claimant following the incident. Such notice of intention could not relate in any way to the June 15, 2002 fall or medical care provided thereafter, as it was allegedly served prior to such fall, on April 4, 2002. Defendant has submitted no reply papers and I must thus accept, for the purposes of this motion, that claimant did in fact serve such notice of intention on April 4, 2002.


The March 22, 2002 Slip and Fall

As set forth above, the notice of intention served by claimant on April 4, 2002 made no allegations of negligence with regard to the March 22, 2002 slip and fall itself. To the extent the claim alleges such negligence, its service on January 30, 2004 occurred more than 90 days after accrual and accordingly was untimely for the purposes of §10.3 of the Court of Claims Act.




Medical Care Following the March 22, 2002 Slip and Fall

In the notice of intention served by claimant on April 4, 2002, he did complain of the medical care he received following his March 22, 2002 slip and fall. To the extent the claim asserts such improper medical treatment, its service on January 30, 2004, less than two years later, was timely for the purposes of §10.3 of the Court of Claims Act.


The June 15, 2002 Slip and Fall

As set forth above, the notice of intention served by claimant on April 4, 2002 made no allegations of negligence as to the June 15, 2002 slip and fall itself. To the extent the claim alleges such negligence, its service on January 30, 2004 occurred more than 90 days after accrual and accordingly was untimely for the purposes of §10.3 of the Court of Claims Act.


Medical Care Following the June 15, 2002 Slip and Fall

No notice of intention was served with regard to medical care following the June 15, 2002 fall, however, the claim served on January 30, 2004 does contain references to medical care running from the June 15, 2002 incident date through November 3, 2003. While neither party refers to the doctrine of continuous treatment, a review of the claim indicates that such doctrine may be applicable in this case. CPLR 214-a provides in relevant part that medical malpractice claims must be commenced within two years and six months of the act, omission or failure complained of "or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure. . ." Such tolling applies to the filing requirements of the Court of Claims Act as well as to the statute of limitations. See, e.g., Ogle v State of New York, 142 AD2d 37, 535 NYS2d 190 (3d Dept 1988). In short, with regard to this cause of action, claimant is entitled, at this point, to the benefit of the continuous treatment doctrine. See, e.g., Mitchell v State of New York, Ct Cl dated January 4, 2001 (unreported, claim no. 100912, motion no. M-62568, UID #2001-028-0508[2], Sise, J.).
* * *
"It is well established that compliance with sections 10 and 11 of the Court of Claims Act pertaining to the timeliness of filing and service requirements respecting claims and notices of intention to file claims constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State, and accordingly, must be strictly construed . . ." Byrne v State of New York, 104 AD2d 782, 783, 480 NYS2d 225, 227 (2d Dept 1984), lv denied, 64 NY2d 607, 488 NYS2d 1023 (1985) (citations omitted). See also Mallory v State of New York, 196 AD2d 925, 601 NYS2d 972 (3d Dept 1993). To the extent Bonnette's claim was untimely served, this Court lacks jurisdiction.
* * *
For the foregoing reasons, having reviewed the submissions,[3] IT IS ORDERED that motion no. M-68082 be denied. IT IS FURTHER ORDERED that motion no. M-68171 be granted in part and denied in part in that claim no. 108849 shall be dismissed except to the extent it alleges improper medical care relating to and following both the March 22, 2002 slip and fall and the June 15, 2002 fall.

May 3, 2004
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims





  1. [1]Section 10.3 of the Court of Claims Act provides that a claim such as this one must be served on defendant within ninety days of accrual, unless a notice of intention is served within ninety days, in which case, claimant then has two years to serve and file a claim.
  1. [2]This and other decisions of the Court of Claims may be found on the Court's website, www.nyscourtofclaims.state.ny.us.
  2. [3]On motion no. M-68082, the following were reviewed: claimant's Petition with affidavit in support and memorandum of law; and defendant's affirmation in opposition. On motion no. M-68171, the following were reviewed: defendant's notice of motion with affirmation in support and exhibits A and B; and claimant's "Affidavit in Answer to Defendant's Motion" with undesignated exhibits.