New York State Court of Claims

New York State Court of Claims

BUMPUS v. THE STATE OF NEW YORK, #2004-032-066, Claim No. 104062, Motion No. M-68733


Synopsis


Defendant's motion to dismiss any portion of the claim that could be construed as stating a cause of action for an intentional tort accruing before July 19,2000 is granted, as any such cause of action accrued more than 90 days before service upon the Attorney General of the notice of intention to file a claim. Claimant's motion for the appointment of counsel is denied as the action does not involve a grievous forfeiture or the loss of a fundamental right.

Case Information

UID:
2004-032-066
Claimant(s):
JAMES BUMPUS
Claimant short name:
BUMPUS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104062
Motion number(s):
M-68733
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
James Bumpus, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Dennis M. Acton, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
September 20, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

This is an action for medical negligence and/or malpractice allegedly arising out of the failure of the medical personnel at the Upstate Correctional Facility ("Upstate") to properly treat the inmate claimant's complaints of stomach pain. A notice of intention to file a claim was served on the Attorney General, without a verification, on October 3, 2000. The verification was subsequently received by the Attorney General on October 16, 2000. The claim was filed on March 30, 2001, and a copy of the claim served on the Attorney General on July 18, 2001.

In its answer filed on August 14, 2001, defendant alleged that the claim was time barred insofar as it could be construed, at least in part, as asserting a cause of action for an intentional tort accruing before July 19, 2000, pursuant to CPLR 215 and section 10 (3-b) of the Court of Claims Act. Defendant now moves to partially dismiss the claim on the basis of this affirmative defense. Claimant has failed to respond to defendant's motion and therefore defendant's assertions are undisputed. Instead, claimant has requested the appointment of counsel to assist him with this matter.

Pursuant to § 10 (3-b) of the Court of Claims Act, "[a] claim to recover damages ... for personal injuries caused by the intentional tort of an officer or employee of the state ... shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim ..." The filing and service requirements of the Court of Claims Act are jurisdictional and must be strictly construed (Lurie v State of New York, 73 AD2d 1006 [3d Dept 1980], affd 52 NY2d 849 [1981]). Here, service of the notice of intention to file a claim was perfected on October 16, 2000, when the verification to the previously served notice of intention was served on the Attorney General. Thus, any cause of action for an intentional tort which occurred before July 18, 2000, 90 days before completion of the service of the notice of intention, would be untimely and subject to dismissal if the affirmative defense in defendant's answer was pled with the requisite particularity required by §11 (c) of the Court of Claims Act.

After reviewing the fourth affirmative defense in defendant's answer, the Court finds that the defense preserves the jurisdictional defense with sufficient particularity as required by section 11 (c) of the Court of Claims Act as it provides "adequate and clear notice to any reasonable person that a defect is claimed to exist and that it may at some point be used as the basis of a motion to dismiss" (Sinacore v State of New York, 176 Misc 2d 1, 6 [Ct Cl 1998]); see also Fowles v State of New York, 152 Misc 2d 837 [Ct Cl 1991]) and refers both to the statute and the requirement that was not met. Thus, to the extent and only to the extent, that the claim can be construed as alleging an intentional tort accruing prior to July 18, 2000, such a cause of action is dismissed.

Finally, while not specifically addressing defendant's motion, claimant has requested the assignment of counsel to assist him with his claim. The Court of Appeals has held that there is no constitutional or statutory requirement that indigents be assigned private counsel in civil litigation of this nature (Matter of Smiley, 36 NY2d 433 [1975]). Smiley has been interpreted as holding that Courts should not routinely approve requests made by indigents for the assignment of private counsel without compensation unless the litigation involves grievous forfeiture or loss of a fundamental right (Wills v City of Troy, 258 AD2d 849 [3d Dept 1999], lv dismissed, 93 NY2d 1000 [1999]). The Court has examined the claim and finds that it is not one wherein the claimant is faced with either a grievous forfeiture or loss of a fundamental right (Morgenthau v Garcia, 148 Misc 2d 900, 903 [Sup Ct, NY County 1990]).

Defendant's motion to dismiss a cause of action for an intentional tort accruing before July 18, 2000, as construed in the claim is granted, and claimant's motion for appointment of counsel is denied.


September 20, 2004
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


The following papers were read on State's motion for an order of dismissal:

1. Notice of Motion and Supporting Affidavit of Dennis M. Acton, Esq., AAG with annexed exhibits;

2. "Motion" of James Bumpus, pro se;

Filed papers: Claim; Answer