New York State Court of Claims

New York State Court of Claims

WRIGHT v. THE STATE OF NEW YORK, #2004-034-506, Claim No. 105974, Motion Nos. M-67852, M-67895, M-67916, M-67918


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):
M-67852, M-67895, M-67916, M-67918
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
New York State Attorney General
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 4, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has moved to dismiss the Claim pursuant to Court of Claim Act § 10 (3), CPLR 3211 (a) (2), and CPLR 3211 (a) (7). The following papers have been submitted to the Court for review:

1. Claim, verified April 15, 2002, filed April 25, 2002;

2. Answer, verified May 28, 2002, filed May 30, 2002;

3. Notice of Motion, dated January 12, 2004, filed January 14, 2004;

4. Affirmation of Thomas G. Ramsay, Esq., affirmed January 12, 2004, in support of the motion, with attached exhibits.

On consideration the Court will now grant the requested relief. In so doing the Court notes that Claimant has not submitted any papers in opposition to this dismissal motion. However, Claimant has filed and served three motions, in which he has sought leave to proceed as a poor person (Motion No. M-67852), a subpoena to compel the testimony of Dr. David O'Connell, M.D., at the trial now scheduled for February 26, 2004 (Motion No. M-67916), and a subpoena duces tecum for hospital and medical records from Orleans Correctional Facility (Motion No. M-67918). Claimant's motions will be addressed below.

Claimant seeks to recover for alleged medical malpractice by reason of the apparent determination by medical providers at Livingston Correctional Facility to discontinue his medication and treatment on January 27, 2002. Claimant has further alleged that the failure to treat his medical conditions constituted cruel and unusual punishment and deliberate indifference to his medical needs, in violation of his rights under the Eighth and Fourteenth Amendments to the United States Constitution. For those reasons Claimant has sought punitive damages in addition to compensatory damages. In answering the Claim Defendant raised a number of affirmative defenses, including untimeliness, alleging that the Notice of Intention to File a Claim and Claim in this matter had both been served upon the Attorney General more than ninety days following the incident in issue. Defendant has now moved inter alia for dismissal of the Claim on that basis.

Court of Claims Act § 10 (3) requires that "[a] claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional 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." That section sets forth a similar time frame for the service of a notice of intention to file a claim upon the Attorney General. Because suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, such statutory requirements conditioning suit must be strictly construed (Lurie v State of New York, 73 AD2d 1006, affd 52 NY2d 849). Here the service of both the Notice of Intention to File a Claim and Claim upon the Attorney General on May 2, 2002, ninety-five days after accrual, was untimely, and the Claim must be dismissed on that basis.

In its Sixth Affirmative Defense Defendant also challenged the jurisdiction of the Court to consider the Claim to the extent recovery for constitutional violations and punitive damages are sought. Although moot in light of the dismissal of this action for lack of timely service, those requests for relief are beyond the jurisdiction of this Court. The State is not a "person" amenable to suit within the meaning of 42 USC § 1983 (Will v Michigan Dept. of State Police, 491 US 58), and recovery against the State under respondeat superior principles is not authorized under that statute ( see Monell v Dept. of Social Servs. of City of New York, 436 US 658, 691-694 [municipality not liable as employer for section 1983 violations by its employees]). Further, the State's waiver of sovereign immunity effected by Court of Claims Act § 8 did not extend to punitive damages (Sharapata v Town of Islip, 56 NY2d 332; see also Firth v State of New York, 184 Misc 2d 105, affd 287 AD2d 771, affd 98 NY2d 365). For those reasons Claimant's cause of action for constitutional violations and punitive damages must separately fail, even if Claimant had timely effected service upon the Attorney General.

In light of the above the Court will not address Defendant's further arguments in support of dismissal, or Claimant's motions for poor person status and subpoenas, all of which are now moot.

Based upon the above it is

ORDERED, that Defendant's motion is granted, and the Claim is dismissed.

All other motions pending before the Court will be denied.

February 4, 2004
Buffalo, New York

Judge of the Court of Claims