New York State Court of Claims

New York State Court of Claims

CROPPER v. THE STATE OF NEW YORK, #2004-030-042, Claim No. 106048


Synopsis



Case Information

UID:
2004-030-042
Claimant(s):
WALTER CROPPER
Claimant short name:
CROPPER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106048
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
WALTER CROPPER, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: J. GARDNER RYAN, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
November 19, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Walter Cropper, the Claimant herein, alleges in Claim Number 106048 that he was injured while using exercise equipment that Defendant's agents had negligently failed to maintain at Green Haven Correctional Facility (Green Haven). Trial of the matter was held on October 22, 2004.

Claimant testified that on May 8, 2000 at approximately 10:00 a.m. he was "doing pull-ups on the pull-up bar"[1]
when it broke and fell hitting him in the head and knocking him "unconscious." He was immediately taken to the facility hospital, and then to an outside hospital the following day. He said he suffered a "severe concussion, . . . [his] brain was bleeding", and he sustained back and neck injuries. Since the incident, he has been prescribed "dozens of different medications for pain".
Claimant's ambulatory health record (hereafter AHR) for the period from May 5, 2000 to July 6, 2000 was admitted in evidence. [Exhibit 1]. The AHR confirms that the Claimant received medical treatment for an injury on May 8, 2000, was referred to St. Francis Hospital, and also referred for consultation with specialists.
[Id].
Claimant also testified that he filed a grievance asking that the facility "stop using defective materials," and for money damages. [Exhibit 2]. The Inmate Grievance Resolution Committee indicated that the "yard equipment should be checked and maintained," and also indicated that the request for damages was beyond its purview.
[Id]. Claimant appealed the determination, and the grievance was received by the Central Office Review Committee. [Exhibit 3].
No other witnesses testified and no other evidence relative to the substantive aspects of the claim was submitted.

The Claim recites - and the Assistant Attorney General did not dispute - that a Notice of Intention to file a claim was served on the Attorney General on May 22, 2000. Timely and proper service of the Notice of Intention in this case would toll the limitations period to allow for service of the underlying claim within two (2) years of its accrual, rather than ninety (90) days.
See Court of Claims Act §10 3. After eliciting some testimony from Claimant, however, regarding service of the Claim itself, it appears that the Claim was not served until May 17, 2002, more than two years after the date of accrual of May 8, 2000. Indeed, a certified mail receipt Claimant offered confirms that the Attorney General received the Claim on May 17, 2002. [Exhibit 4]. Claimant offered copies of facility disbursement request forms allowing withdrawal of funds from his inmate account to pay for the cost of certified mail dated May 6, 2002, and approved by personnel on May 7, 2002, to show that for his part he mailed the Claim prior to the expiration of the tolled statute of limitations period. He argued that it was therefore timely served and filed.
Notably, however, service upon the Attorney General is complete only upon delivery.
See Court of Claims Act §11(a)(i).
The filing and service requirements contained in Court of Claims Act §§10 and 11
are jurisdictional in nature and must be strictly construed. Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 (1989); See also Welch v State of New York, 286 AD2d 496, 729 NYS2d 527, 529 (2d Dept 2001); Conner v State of New York, 268 AD2d 706, 707 (3d Dept 2000). Indeed, the statute provides in pertinent part ". . . [n]o judgment shall be granted in favor of any claimant unless such claimant shall have complied with the provisions of this section applicable to his claim . . . " Court of Claims Act §10. Failure to comply with the service provisions results in a lack of jurisdiction over the State, unless Defendant has failed to properly plead jurisdictional issues or raise them by motion. Court of Claims Act §11(c); Edens v State of New York, 259 AD2d 729 (2d Dept 1999); Philippe v State of New York, 248 AD2d 827 (3d Dept 1998).
Here, the Claimant has not established that he timely served the Claim upon the Attorney General as required, and the Defendant has raised the jurisdictional issue both in its Answer, and in a timely motion. Accordingly, on this ground alone, Claim number 106048 must be dismissed.

Even if the Claim were considered on the merits, it would have to be dismissed for substantive reasons as well.

Although the State has a duty to protect inmates from foreseeable risks of harm, it is not the insurer of inmate safety. Its duty is to exercise "reasonable care under the circumstances . . ." [
Basso v Miller, 40 NY2d 233, 241 (1976)], to protect against foreseeable risks of harm. Assuming that the State did not create the dangerous condition, a Claimant must show that the State had actual or constructive notice of the condition and failed to act reasonably to remedy it. Gordon v American Museum of Natural History, 67 NY2d 836, 837 (1986). Creation of a dangerous condition constitutes actual notice. Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 249 (1st Dept 1984), affd 64 NY2d 670 (1984). With respect to constructive notice, any ". . . defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit . . . [a defendant] to discover and remedy it . . . (citation omitted)." Gordon v American Museum of Natural History, supra, at 837.
Based upon the sketchy evidence presented here, if there was a dangerous condition because of defective or poorly maintained exercise equipment, there has been no showing that the State was aware of the condition and failed to cure it. While the Claimant's testimony that the pull-up bar fell is credited, and the Court sympathizes with his obvious discomfort, without more, there is simply no demonstration by a preponderance of the credible evidence that this condition - if not part of the design of the equipment - was either created by Defendant, or one which the Defendant should have been aware of, and taken steps to remedy. It is only those foreseeable dangerous conditions which are not remedied within a reasonable time which may establish liability on the State's part, [
Gordon v American Museum of Natural History, supra], assuming that proximate cause and actual damages are proven as well.
Accordingly, Claim Number 106048 is in all respects dismissed.

Let Judgment be entered accordingly.


November 19, 2004
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]All quotations are to trial notes or audiotapes unless otherwise indicated.