New York State Court of Claims

New York State Court of Claims

JENNINGS v. THE STATE OF NEW YORK , #2004-030-588, Claim No. 109448, Motion No. M-69120


Synopsis



Case Information

UID:
2004-030-588
Claimant(s):
MICHAEL JENNINGS
Claimant short name:
JENNINGS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109448
Motion number(s):
M-69120
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
MICHAEL JENNINGS, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
November 17, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 6 were read and considered on Defendant's motion


to dismiss the within claim:

1,2 Notice of Motion, Affirmation by Jeane L. Strickland Smith, Assistant Attorney General and attached exhibits

  1. Opposition to Notice of Motion to Dismiss by Michael Jennings, Claimant
4-6 Filed Papers: Claim, Answer, Jennings v State of New York, Claim No. 109448, Motion No. M-68906, UID #2004-030-575, (Scuccimarra, J., filed October 6, 2004) After carefully reviewing the papers submitted and the applicable law the motion is disposed of as follows:

Michael Jennings, the Claimant herein, alleges in Claim Number 109448 that Defendant's agents failed to provide him with adequate medical care while he was in the custody of the New York State Department of Correctional Services (hereafter DOCS) at various correctional facilities. In its Answer, in addition to general denials, the Defendant asserted ten affirmative defenses, including the Sixth Affirmative Defense alleging that the claim is time-barred because the Notice of Intention to file a Claim was not timely served, and thus did not extend the time to serve and file the Claim.

In a prior Decision and Order, this Court granted Claimant's unopposed[1] motion to dismiss the Sixth Affirmative Defense. [Jennings v State of New York, Claim No. 109448, Motion No. M-68906, UID# 2004-030-575, (Scuccimarra, J., filed October 6, 2004)].

The Defendant now moves to dismiss the claim based upon the Sixth Affirmative Defense, as well as other affirmative defenses raised that are related, primarily, to timeliness and the adequacy of the Notice of Intention and the Claim with respect to specificity under Court of Claims Act §11(b). See also 22 NYCRR §206.6. In reaching its earlier determination on Claimant's motion the Court also determined - impliedly - that the Claim was timely and specific enough, and that the continuous treatment doctrine appeared to apply. See McDermott v Torre, 56 NY2d 399, 405 (1982); Civil Practice Law and Rules §214-a.

As noted in the Court's prior Decision and Order, Claimant benefits from the application of the continuous treatment doctrine, at least until November 29, 2003, the date the Notice of Intention was served. Toxey v State of New York, 279 AD2d 927, 929 (3d Dept 2001) The claim served and filed herein is timely at least with respect to allegations up to and including November 29, 2003. In any event, Claimant's burden of establishing his Claim remains.

Accordingly, Defendant's Motion Number M-69120 is in all respects denied.


November 17, 2004
White Plains, New York

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



[1] The present motion by Defendant - entitled "cross-motion"- was submitted two weeks after the Claimant's motion was submitted without opposition.