New York State Court of Claims

New York State Court of Claims

STEVENSON v. THE STATE OF NEW YORK, #2004-031-073, Claim No. 108649, Motion No. M-68007


Synopsis


Case Information

UID:
2004-031-073
Claimant(s):
ANTHONY D. STEVENSON
Claimant short name:
STEVENSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108649
Motion number(s):
M-68007
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
ANTHONY D. STEVENSON, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: EDWARD F. MC ARDLE, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 21, 2004
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on motion by Defendant for dismissal of the claim:
  1. Defendant's Notice of Motion, filed February 2, 2004;
2) Affirmation of Edward F. McArdle, Esq., dated January 29, 2004, with attached exhibit;
3) Affidavit of Anthony D. Stevenson, sworn to February 14, 2004;
4) Affidavit of Anthony D. Stevenson, sworn to February 25, 2004, with attached exhibits;
5) Filed Documents: Claim. Claimant commenced this action by claim filed on December 12, 2003, seeking to recover damages for injuries he sustained on March 22, 2002, when Defendant allegedly improperly divulged certain confidential medical information about Claimant. The claim also alleges that Claimant was improperly denied medically prescribed boots, physical therapy, a knee brace and a "bathroom pass." With the exception of the "bathroom pass," which Claimant admits he received in July of 2003, Claimant alleges that the failure to provide these items is ongoing.

With this motion, Defendant seeks dismissal of the claim as untimely, based upon Claimant's failure to serve the claim or a notice of intention to file a claim upon the Attorney General within 90 days of accrual, as required by Court of Claims Act § 10(3). In response to this motion, Claimant points out to the Court that he is an inmate, and identifies various problems he encountered when trying to have the claim served upon the Attorney General. Claimant also alleges that he did serve a notice of intention to file a claim upon the office of the Attorney General on December 15, 2002, but admits that it was not served by certified mail return receipt requested.
NOTICE OF INTENTION
I will first address Claimant's contention that he served a notice of intention on December 15, 2002. The Court of Claims Act § 11 (a) provides, in relevant part, that a copy of the claim or notice of intention to file a claim, "shall be served personally or by certified mail, return receipt requested, upon the attorney general." The requirements set forth in Court of Claims Act § 11 are jurisdictional in nature and, as such, must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687). The Court is not free to disregard the requirements of these sections. "[D]iscretion, equity, or a harsh result may not temper application of a rule of law" (Martin v State of New York, 185 Misc 2d 799, 804).

Because service of the notice of intention to file a claim upon the Attorney General was effected by regular mail, not certified mail, return receipt requested, that document is a nullity and did not preserve Claimant's rights or extend the time period within which he could serve a timely claim.

Additionally, even if Claimant had served the notice of intention to file a claim by certified mail, return receipt requested, the date it was served, December 15, 2002, was not within 90 days of most of the events alleged in the claim.
DISMISSAL
Pursuant to the Court of Claims Act § 10(3), a claim based upon personal injury resulting from the negligence, or intentional act of an agent of the State, such as is alleged here, must be filed within 90 days unless Claimant has served a notice of intention to file a claim. As stated above, Claimant did not properly serve a notice of intention to file a claim. It is a fundamental principle of practice in the Court of Claims that the filing and service requirements contained in the Court of Claims Act § 10 are jurisdictional in nature and must be strictly construed. (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722, supra; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687, supra). As such, the causes of action relating to Defendant's alleged improper disclosure of Claimant's confidential medical information, and failure to provide Claimant with a "bathroom pass" must be dismissed as untimely.

However, Claimant's cause of action for medical neglect, as it relates to Defendant's continued failure to provide him with medically prescribed boots, physical therapy and a knee brace are untimely only with regard to the period of time more than 90 days prior to service of the claim, December 22, 2003. Since these failures are allegedly ongoing, the claim is, therefore, not untimely with regard to any damages Claimant can show he sustained from September 23, 2003, to date, as a result of Defendant's negligent failure to provide Claimant with these prescribed items.

Based upon the foregoing, it is hereby

ORDERED, that Defendant's motion to dismiss Claim No. 108649 is granted in part, and Claimant's causes of action based upon Defendant's alleged improper disclosure of Claimant's confidential medical information, and failure to provide Claimant with a "bathroom pass," are dismissed as untimely, and it is further

ORDERED, that Claimant's cause of action for medical neglect, relating to Defendant's continued failure to provide him with medically prescribed boots, physical therapy and a knee brace are dismissed only to the extent that it alleges misfeasance and damages that occurred prior to September 23, 2003, and it is further

ORDERED, that Defendant is directed to serve and file its answer to the claim, as limited above, within 40 days from the filing date of this decision and order.

June 21, 2004
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims