New York State Court of Claims

New York State Court of Claims

ARNOLD v. THE STATE OF NEW YORK, #2005-010-029, Claim No. 110235, Motion Nos. M-69593, CM-69965


Synopsis


Defendant's motion to dismiss is granted and claimant's cross-motion for leave to serve and file a late claim is denied.

Case Information

UID:
2005-010-029
Claimant(s):
STEVEN WAYNE ARNOLD The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Claimant short name:
ARNOLD
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110235
Motion number(s):
M-69593
Cross-motion number(s):
CM-69965
Judge:
Terry Jane Ruderman
Claimant's attorney:
PHILIP J. DINHOFER, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: J. Gardner Ryan, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 20, 2005
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-3 were read and considered by the Court on defendant's motion to dismiss and claimant's cross-motion for leave to serve and file a late claim:
Notice of Motion, Attorney's Supporting Affirmation and Exhibit.........................1

Notice of Cross-Motion, Attorney's Supporting Affirmation and Exhibits..............2

Attorney's Affirmation in Opposition......................................................................3

The claim, served on December 22, 2004 and filed on December 17, 2004, alleges that on March 14, 1998, during claimant's incarceration at Mid-Orange Correctional Facility, he was assaulted by another inmate. Claimant contends that defendant is liable for the assault because it failed to comply with claimant's repeated requests to be transferred from the section/program where he was housed at Mid-Orange. Claimant also asserts that the medical care and treatment rendered to him after the assault was negligent and unprofessional causing him to suffer further injury, pain, and suffering. The claim further alleges a violation of his civil rights under New York State Human Rights Law, Executive Law §290 et seq. Defendant moves to dismiss the claim as untimely and claimant cross-moves for leave to serve and file a late claim.

Insofar as the claim is based upon facts alleged to have occurred approximately seven years ago, i.e., on or before March 14, 1998, the causes of action based upon those facts are time-barred and this Court is without discretion to entertain them as a basis for a late claim application (see Miller v State of New York, 283 AD2d 830). Specifically, the statute of limitations on the alleged claims have all lapsed (see Koerner v State of New York, 62 NY2d 442 [three year statute of limitations applies in an action to recover upon a liability created by statute, i.e., Executive Law §290 et seq]; CPLR §§ 214[2], 214-a). Thus, claimant's failure to serve and file a late claim application before the expiration of the statute of limitations precludes the Court from considering claimant's application for leave to file a late claim because "[t]he failure to file such application within the proscribed time period creates a jurisdictional defect and the court is without discretionary power to grant nunc pro tunc relief" (Bergmann v State of New York, 281 AD2d 731, 733).

As to any claims alleged to have accrued after March 14, 1998, the Court rejects claimant's argument that the malpractice claim would be timely under the continuous treatment doctrine. Claimant has neither established the applicability of the continuous treatment doctrine nor the appearance of merit of such claims. Similarly, the Court finds that claimant has failed to establish entitlement to the tolling provision under Court of Claims Act §10(5).

Finally, contrary to claimant's arguments, the tolling provisions of CPLR 205(a) are unavailable to claimant (see Alston v State of New York, 97 NY2d 159; Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp., 93 NY2d 375; Dreger v New York State Thruway Auth., 81 NY2d 721). It is well settled that the six month extension authorized by CPLR 205(a) may not be invoked in this Court because the statutory time constraint on commencing a claim in this Court is a condition precedent to the waiver of sovereign immunity (see Alston v State of New York, supra; Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp., supra).

Accordingly, defendant's motion to dismiss is GRANTED and claimant's cross-motion is DENIED.


May 20, 2005
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims