New York State Court of Claims

New York State Court of Claims

ROACHE v. THE STATE OF NEW YORK, #2004-016-060, Claim No. 104621


Claim alleging slip and fall on ice at Mid-Orange Correctional Facility - - as well as improper medical care thereafter - - was dismissed.

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):

Alan C. Marin
Claimant's attorney:
Walter J. Roache
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Mary B. Kavaney, Esq., AAG
Third-party defendant's attorney:

Signature date:
October 4, 2004
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This decision follows the trial of the claim of Walter J. Roache, which was held at Mid-Orange Correctional Facility. In his claim, Mr. Roache alleges that on January 10, 1999, while working as an inmate porter, he slipped and fell on ice outside the B-2 dormitory at Mid-Orange, injuring his shoulder and breaking a tooth. He also complains of the medical and dental care he received thereafter. Roache testified on his own behalf and defendant called Correction Officer Stephen Coleman.

Claimant testified that on Wednesday, January 6, 1999, four to six inches of snow fell at Mid-Orange. He recalled that on Wednesday night, the temperature rose and the next day it rained such that there was water "all over" the facility. He also recalled that on Thursday evening
, the temperature went below 20ΕF, so that "everything froze" by Friday, January 8th. According to claimant, he saw no salt or sand put down from that Friday through the following Wednesday. Roache added that three people fell on the ice, apparently during such time frame, but he did not have firsthand knowledge and offered no specifics thereon.
Roache testified that on Sunday, January 10
th, he was asked to take out some trash and while doing so, slipped and fell on the ice, hitting his head and breaking a tooth. He recalled that a correction officer came over to assist him and offered to take him to the medical clinic, but he opted to return to his cell and lie down. Claimant said that at around 11:00 p.m. that night, he told a correction officer that he had pain from the fall, and the correction officer responded that he was scheduled to see a doctor the next morning at 8:00 a.m.
According to Roache, when he reported to the clinic on Monday, January 11
th, he was informed that the doctor could not come in because of the weather and that his appointment would be rescheduled. He maintained that his appointment was rescheduled nine times, after which he wrote to the Deputy Superintendent of Administration. He said that shortly thereafter - - but more than a month after his fall - - he finally saw a doctor who noted a bone "sticking up" in his shoulder and scheduled him for an x-ray. Claimant stated that when another month went by without an x-ray, he again wrote to the Deputy Superintendent, and that an x-ray was then taken, but his follow-up appointment was rescheduled 11 times. It was unclear from claimant's testimony whether he ultimately learned of the x-ray result, or what such result was.
As to his broken tooth, claimant was treated by a facility dentist who, according to claimant, said his broken tooth was a "perfect candidate" for capping, but told him that the State would not pay for it. According to claimant, when the dentist was treating the broken tooth, he accidentally broke another of Roache's teeth, and such tooth was capped.

On cross-examination, Roache stated that he did not complete an incident report as to his accident, explaining that this was because a correction officer was present when he fell, and he later learned he was already scheduled for a medical appointment. Nor did he file a grievance, because he did not want a "hassle."
* * *
Correction Officer Coleman testified that at defendant's request, he searched for incident reports concerning Roache's fall and found none. Coleman added that he also searched for reports of other January 10, 1999 snow- and ice-related accidents, and found none.
* * *
At trial, defendant moved to dismiss on the grounds that Mr. Roache's notice of intention was untimely served and his claim was untimely served and filed. According to defendant, the notice of intention was served on April 14, 1999 and the claim was served on July 21, 2001. Claimant did not dispute these dates. As to the filing of the claim, the Court's records show that such was done on July 23, 2001.

With regard to claimant's slip and fall, §10.3 of the Court of Claims Act provides that such a claim must be served and filed within 90 days of accrual, unless a notice of intention is filed within such time frame, in which case a claim must then be served and filed within two years of accrual.

In this case, Roache's notice of intention was served on April 14, 1999, ninety-four days after his January 10, 1999 fall. Even if such notice of intention had been timely, Roache would then have been required to serve and file his claim within two years of January 10, 1999. The service and filing of his claim - - on July 21, 2001 and July 23, 2001, respectively - - were thus more than six months late.

"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).
As to Roache's claim of improper medical and dental treatment, even to the extent such might be timely under a continuous treatment theory, claimant presented no expert testimony that accepted standards of medical care were not met, which would be required for him to prevail. See, e.g.,
Lyons v McCauley, 252 AD2d 516, 675 NYS2d 375 (2d Dept 1998), lv denied 92 NY2d 814, 681 NYS2d 475 (1998).
In view of the foregoing, claim no. 104621 is dismissed.

October 4, 2004
New York, New York

Judge of the Court of Claims