New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2005-009-031, Claim No. 110414, Motion No. M-69837


Synopsis


Defendant's motion to dismiss for untimely service was granted. The Court found claimant's notice of intention insufficient to place the State on notice of a potential claim, and the subsequently served claim was not timely served.

Case Information

UID:
2005-009-031
Claimant(s):
MELVIN SMITH
Claimant short name:
SMITH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110414
Motion number(s):
M-69837
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
MELVIN SMITH, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Belinda A. Wagner, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
May 23, 2005
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant has brought this motion seeking an order dismissing the claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation in Support, with Exhibits 1,2


Filed Papers: Claim.

In his filed claim, claimant, an inmate under the care and custody of the Department of Correctional Services, seeks damages for alleged negligence and/or medical malpractice for the delay and/or denial of medical treatment.

As set forth in defendant's moving papers, a notice of intention to file a claim was served upon the Attorney General on August 23, 2004 (see Exhibit A to Items 1,2). His claim, which was filed with the Clerk of the Court of Claims on January 26, 2005, was served that same date upon the Attorney General (see Exhibit B to Items 1,2).

It is defendant's contention in this motion, however, that the notice of intention was insufficient to place the State on notice of any potential claim, and thereby should be treated as a nullity. If so, defendant then contends that the claim was not served within 90 days of the accrual date as required by Court of Claims Act § 10(3), rendering it untimely and subject to dismissal.

Claimant has not submitted any papers in opposition to this motion.

Pursuant to Court of Claims Act § 10(3), a claim seeking to recover for personal injuries caused by negligent acts committed by an officer or employee of the State must be served upon the Attorney General, and filed with the Clerk of the Court of Claims, within 90 days of accrual, unless a notice of intention to file a claim is served upon the Attorney General within such 90 days. If a proper notice of intention is so served, the claim must then be served and filed within two years after its accrual date.

In this particular matter, and as set forth in claimant's notice of intention (see Exhibit A to Items 1,2), claimant began receiving treatment for hepatitis C on August 7, 2004, while he was confined at Mt. McGregor Correctional Facility. Defendant therefore contends that any claim for the denial or delay of medical services in the treatment of his hepatitis C therefore accrued on this date. Since claimant has not contested this argument, the Court hereby adopts the date of August 7, 2004 as the accrual date for this claim. As a result, any claim for the denial or delay of medical treatment had to be served and filed by November 5, 2004, unless a proper notice of intention to file a claim was served upon the Attorney General by said date.

It is undisputed that a notice of intention was in fact served upon the Attorney General prior to November 5, 2004, since defendant acknowledges service of claimant's notice of intention on August 23, 2004. The Court has reviewed this notice of intention (see Exhibit A to Items 1,2) which merely states: "Upon being diagnosed with Hepatitis C at Mid-State Corr. Fac. this Claimant was informed that he had to complete ASAT before he would be treated for his illness. This Claimant was started on his treatment on August 7, 2004 while confined at Mt. McGregor."

Pursuant to Court of Claims Act § 11(b), a notice of intention to file a claim must set forth the time and place the claim arose, as well as the nature of the claim. Although the notice need not be scrutinized as strictly as a pleading (Cannon v State of New York, 163 Misc 2d 623), the notice must provide a general nature of the claim, the manner in which the claimant was injured, and how the State was negligent (Heisler v State of New York, 78 AD2d 767). In this matter, claimant has failed to provide any information that would give any indication to the defendant of a potential claim for negligent medical treatment, and makes no mention whatsoever of the denial and/or delay in providing him medical treatment, which allegations form the basis of his filed claim.

Accordingly, the Court must conclude that the notice of intention to file a claim is wholly insufficient in describing the nature of the claim, that it failed to provide sufficient notice to the State of a potential claim, and that it must therefore be considered a nullity. As such, claimant did not receive the benefit of the extension of time for the service and filing of his claim provided by § 10(3). As a result, the claim (which was served and filed on January 26, 2005) was not served and filed within 90 days from the date of accrual, and is therefore untimely.

The provisions of the Court of Claims Act relating to the time and manner of service and filing are jurisdictional prerequisites to the maintenance of a claim, and as such must be strictly construed (Greenspan Bros. v State of New York, 122 AD2d 249). As a result, this Court does not have the authority to cure or overlook defects in the time and/or manner of service and filing. This claim must therefore be dismissed.

Based on the foregoing, it is

ORDERED, that Motion No. M-69837 is hereby GRANTED; and it is further

ORDERED, that Claim No. 110414 is hereby DISMISSED.


May 23, 2005
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims