New York State Court of Claims

New York State Court of Claims
MARKOWITZ v. THE STATE OF NEW YORK, #2005-013-028, Claim No. 105735, Motion Nos. M-69674, CM-69724

REVERSED 37 AD3d 1106 4th Dept 2/2/07
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):
Cross-motion number(s):
Claimant’s attorney:
Defendant’s attorney:
Attorney General of the State of New York
Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 8, 2005

Official citation:

Appellate results:
REVERSED 37 AD3d 1106 4th Dept 2/2/07
See also (multicaptioned case)


On April 20, 2005, the following papers were read on motion by Claimant for an order vacating his Note of Issue and to compel discovery, and on cross-motion by Defendant for a protective order and for summary judgment:

Notice of Motion, Affirmation and Exhibits Annexed

Cross-Notice of Motion, Affirmation and Exhibits Annexed

Claimant’s Affirmation in Opposition to the Cross-Motion and Exhibit Annexed

Defendant’s Reply Affirmation and Exhibits Annexed

Filed Papers: Claim; Answer, Note of Issue.
Upon the foregoing papers, the cross-motion for summary judgment is granted and otherwise denied as moot, and the Claimant’s motion is denied as moot.
There are two motions before the Court. In the first, Claimant seeks to vacate his note of issue and compel the Defendant “to produce all of the outstanding discovery immediately.” In the second, in addition to opposing the Claimant’s motion, the Defendant’s cross-motion seeks summary judgment dismissing the claim, and a protective order against any disclosure. Both motions were originally returnable on February 16, 2005.
After telephone communications with both counsel, by letter dated February 15, 2005, my chambers confirmed the adjournment of both motions to April 20, 2005, and further noted that Claimant’s answering papers to the cross-motion were due on April 6, 2005. Claimant’s affirmation in opposition was dated April 2, 2005 and was timely provided to the Court and to the Defendant. Thereafter, Defendant served reply papers, dated April 18, 2005 and filed with the Clerk on April 20, 2005. In correspondence dated April 26, 2005, Claimant served and submitted, directly to chambers, his “Supplemental Affirmation in Opposition” dated April 26, 2005. Not surprisingly, the Defendant objects to the submission of this supplemental affirmation on two grounds: first, that it is untimely, having been dated and served some six days after the final date of submission of the motions, and second, that there is no authority for the submission of what well might be characterized as a surreply affirmation. Nothing in Claimant’s April 26, 2005 correspondence or affirmation addresses this untimeliness, and Claimant never sought permission from the Court to submit such otherwise impermissible papers. I am not aware of any authority within the CPLR or the Court of Claims Act or rules which authorizes such submissions. I therefore have given no consideration to Claimant’s April 26 affirmation.
A historical retrospective will prove beneficial. First, it appears that Claimant served a notice of intention to file a claim, pro se, on the Defendant on April 28, 2000.
The notice of intention speaks for itself, but the gist of its contents allege an incident in mid-March 2000 at the Attica Correctional Facility wherein Claimant gouged his right eye out, and alludes to a lack of appropriate assessment or treatment of Claimant’s mental health needs.
On March 12, 2002, Claimant, now represented by counsel, filed a claim which alleged, inter alia, negligence, carelessness and otherwise improper behavior by the Defendant, as well as the violation of Claimant’s rights to be protected from cruel and unusual punishment pursuant to Article I, Section 5, of the New York State Constitution. It also described the nature of the claim as being based upon the negligence, recklessness and/or deliberate indifference to Claimant’s serious medical, mental and psychiatric needs.
The Defendant filed its answer on April 22, 2002, raising some 13 affirmative defenses, the details of which will be discussed below as appropriate. A preliminary conference order was issued on October 22, 2002. An amended preliminary conference order was issued on March 3, 2003, which order was amended on May 5, 2003, directing the deposition of Claimant no later than September 2, 2003 and directing Claimant to serve and file a note of issue and certificate of readiness on or before October 1, 2003. Claimant filed his note of issue and certificate of readiness on October 2, 2003, seeking a trial by jury (sic), asserting the nature of the action to be in tort (and not medical malpractice), and certifying that all discovery proceedings were completed. The issue of service of the note of issue
upon the Defendant will be discussed below.
A calendar call to schedule a trial date was held on April 29, 2004, at which time the Court was advised that Claimant was then residing at Kingsboro Psychiatric Center, and Claimant’s counsel was asked to obtain an update of Claimant’s medical condition. On June 2, 2004, a followup letter was sent to Claimant’s counsel regarding Claimant’s medical condition. No response to either inquiry was received by the Court.
On November 22, 2004, Claimant’s counsel served a notice of deposition and issued a subpoena to one Michael Gorke (or Goeke), the result of which, after additional correspondence,
resulted in a conference with the Court. In a daily report dated December 10, 2004, it was reported that Claimant would move to vacate the note of issue. Finally, in response to a further inquiry from the Defendant, I wrote to the parties, tolling the period of time to bring a motion for summary judgment, pending Claimant’s anticipated motion to vacate and further direction from the court.
Claimant duly brought his motion to vacate the note of issue and for an order to compel. In response, Defendant filed a cross-motion seeking summary judgment dismissing the claim, and a protective order against any further disclosure. I address the summary judgment motion first.
Preliminarily, Claimant’s opposition to the cross-motion is procedural, contending that it is untimely made, beyond the “time period dictated” after the filing of the note of issue, and thus must be denied. Not surprisingly Claimant relies on the recent Court of Appeals rulings in Brill v City of New York (2 NY3d 648), and Miceli v State Farm Mut. Auto. Ins. Co. (3 NY3d 725). CPLR 3212(a) applies here:
Rule 3212. Motion for summary judgment.

(a) Time; kind of action. Any party may move for summary judgment in any action, after issue has been joined; provided however, that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown [emphasis supplied].

Reliance upon Brill, supra, is misplaced. In Brill, the Court of Appeals addressed the problems with “eve of trial” summary judgment motions, the impetus for the current proscriptions of CPLR 3212(a), and fashioned a harsh but hopefully salutary remedy. There, the defendant moved for summary judgment one year after the trial calendar papers were filed and gave no explanation for filing the motion after the 120-day limit specified in CPLR 3212(a), simply arguing the merits. The Court of Appeals held that “the Legislature maintained the courts’ considerable discretion to fix a deadline for filing summary judgment motions... [and] struck a balance, fixing an outside limit on the time for filing summary judgment motions, but allowing courts latitude to set an alternative limit or to consider untimely motions to accommodate genuine need” (Brill v City of New York, 2 NY3d 648, 651, supra).
The quandary here is measuring the date from which the time to bring the summary judgment motion commenced. The note of issue filed with the Clerk contains, inter alia, a notarized affidavit of service affirming service by mail upon the Defendant on September 30, 2003. In the most recent amended preliminary conference order to address summary judgment motions, dated March 3, 2003, I directed that such a motion “shall be made no more than 90 days after the Note of Issue is filed.... [and that any] such motion made after that time shall not be filed without leave of the Court on good cause being shown.” Defendant avers under oath that it was never served with the note of issue, which was filed with the Clerk of the Court on October 2, 2003, and was not aware that the same had been filed until approximately one week prior to its letter to me of December 7, 2004 [see footnote 3]. I do note that Defendant alludes to a discussion, some six weeks earlier, on October 14, 2004, with another attorney for Claimant, Lawrence Katz, Esq., who advised that the note of issue had been filed, at which time Defendant avers that it advised counsel that it was unaware of such filing (see paragraphs 52-54 of State’s affirmation in support of the cross-motion). While this suggests a somewhat earlier awareness that a note of issue had been filed, it only precedes the approximate notification date of December 1, 2004 by about six weeks, and is more than one year after the actual filing date. I find that the Defendant acted in due course when it notified the Court in its December 7, 2004 letter.
I find that good cause has been shown, for the reasons which follow. First, there is Defendant’s sworn averment that it never received the note of issue. Second, in a discussion on the record
at the calendar call before me on April 29, 2004, inter alia, the Defendant advised Claimant’s counsel, Johanna C. Abreu, Esq., appearing by telephone, that in previous discussions with Anselmo Alegria, Esq., also from the attorneys of record, regarding the update of a bill of particulars, that Mr. Alegria had said he was going to file a note of issue but that he had not done so. Although the note of issue had in fact been filed on October 2, 2003, and the Defendant articulated on the record that to its knowledge Claimant had not filed the same, Claimant’s counsel did not correct that inaccuracy at that conference, or in any contemporaneous written communication to the Court. That discourse supports Defendant’s contention that it never received the note of issue.
By letter dated December 4, 2004 (Exhibit 9 to the cross-motion), Claimant enclosed a copy of the said note of issue. The Defendant then sought a conference by letter dated December 7, 2004, regarding a disclosure dispute and a discussion of when it might make its summary judgment motion. I conducted the conference on December 10, 2004, and issued a daily report, neither of which addressed summary judgment motions. Shortly thereafter, on December 16, 2004, there was a further inquiry from the Defendant, on notice to the Claimant, with respect to the timing of any motion for summary judgment. I wrote to the parties on December 16, 2004 that “Based upon the representation by Claimant’s counsel that he will be moving to vacate the note of issue, the period of time to bring any motion for summary judgment is tolled, pending such motion and further direction from the Court.”
There was no response, objection or any communication whatsoever from Claimant in response to that letter, and he first raised the question of timeliness in his opposition to the cross-motion for summary judgment. Claimant’s various counsel were put on notice on several occasions that the Defendant had not been served with the note of issue, yet it was not until December 4, 2004 that the Claimant provided a copy of the note of issue to the Defendant. The Defendant immediately sought guidance from the Court, and when I responded, there was no objection or demurral from the Claimant.
When I responded in writing to the parties on December 16, 2004, I made the determination that good faith had been demonstrated, and I tolled the period of time for Defendant to bring the instant cross-motion, and I find that it is not untimely. I now address the substance of that motion.
In this part of the cross-motion, the Defendant urges that the notice of intention to file a claim (NI) is inadequate to extend the time to file a claim as it purportedly did not satisfy the requirements of Court of Claims Act §11(a)(1) that it state the “time when” the claim accrued. And, argues the State, since the NI is fatally vague as to the “time when,” the claim itself was untimely since it was not served and filed within 90 days of accrual of the various causes of action, and is jurisdictionally defective. The Defendant observes that it preserved said untimeliness defense in the seventh and eighth affirmative defenses pleaded in its answer.
The NI alleges that:
On or about mid-March, 2000, in the Attica Correctional Facility I was placed in the Attica SHU without appropriate assessment or treatment of my mental health needs. While in the Attica SHU my condition deteriorated without appropriate care and, as a result of that lack of care, I severely injured myself by gouging out my right eye. I was hospitalized and then transferred to the Central New York Psychiatric Center due to my injury and my mental health needs.

Defendant argues that the “mid-March 2000” reference is vague and insufficient, and that the NI fails to provide the date when Claimant injured himself. As I have observed on numerous occasions, inmates in state correctional facilities are under the total and complete control of correctional authorities. Their movements and placements in various settings within correctional facilities are thoroughly documented; their medical treatments, injuries and care are chronologically maintained. Under these circumstances, the references in the NI are more than adequate and specific enough to provide the time when the cause(s) of action accrued and on this ground I find that the NI is not jurisdictionally defective, and that part of Defendant’s motion is denied.
Next, the Defendant urges that any cause of action which is alleged in the claim, except medical (psychiatric) malpractice, is untimely because such malpractice is the only cause of action preserved in the NI for which the period of time to serve and file a claim was extended (Court of Claims Act §10[3]). The claim alleges a first cause of action which on its face asserts negligence in the failure to reasonably protect the health, safety and welfare of the Claimant, and a second cause of action which asserts that Claimant’s injuries were caused solely by the deliberate indifference of the State of New York, the Department of Correctional Services and the Office of Mental Health to the serious medical and mental health needs of the Claimant.
Resolution of this question requires an examination of the allegations of the claim to determine whether they were preserved in the NI and thus were timely made. The claim asserts causes of action that are based upon “the negligence, carelessness and otherwise improper behavior of the Respondent, as well as the violation of the Claimant’s rights under the laws of the State of New York” and “the negligence, recklessness and/or deliberate indifference to the Claimant’s serious psychiatric needs.”
The issue here is whether the allegations assert medical (psychiatric) malpractice or medical negligence. Medical negligence is the appropriate theory of liability when the alleged negligent acts are readily determinable by the trier of fact based on common knowledge (Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254). But where the propriety of the treatment received is called into issue, then the more specialized theory of medical malpractice is applicable (Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804). In a medical malpractice case, a claimant has the burden of proving a deviation from accepted standards of care (Macey v Hassam, 97 AD2d 919), establish that the medical provider did not possess or did not use reasonable care or best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field (Hale v State of New York, 53 AD2d 1025, supra), and is thus required to present expert testimony in support of his claim (Kennedy v Peninsula Hosp. Center, 135 AD2d 788).
It is clear that Claimant has sought to frame the causes of action in the claim as sounding in negligence, as opposed to medical malpractice, but those allegations must stand, or at least be inferable (see Klos v State of New York, _____ AD3d _____, 2005 NY Slip Opinion 04933 [4th Dept, June 10, 2005]) in the face of an NI which recites in relevant part that the injuries here were sustained “...without appropriate assessment or treatment of [Claimant’s] mental health needs... [and whose] condition deteriorated without appropriate care...” (emphasis supplied).
The allegations of the NI sound in qualitative language, which would require the subjective opinion of an expert in order to be established. The Defendant alleged, as its ninth affirmative defense, the Claimant’s failure to file the certificate required by CPLR 3012-a, and as a result contends that a medical malpractice cause of action may not proceed. Lest there be any question, while CPLR 3012-a(f) excludes pro se plaintiffs (as Claimant was when he served his NI) from its provisions, Claimant was represented by counsel when he served and filed his claim, and thus fell under the penumbra of CPLR 3012-a (see also CPLR 3406).
Claimant’s protestations that this claim sounds in medical negligence, and that it never was, and is not, a medical malpractice claim, must be rejected. The NI on its face, even inferring all allegations and insinuations to inure to Claimant’s benefit, cannot be read as anything but allegations of medical (psychiatric) malpractice. The determining factor is not Claimant’s denomination of his cause of action, as his terminology does not transform a malpractice claim to a negligence claim, but rather whether the claim is “substantially related to medical diagnosis and treatment” (McDonald v State of New York, 13 AD3d 1199, 1200), phraseology essentially echoed in the NI’s assertion of Claimant’s placement “without appropriate assessment or treatment of my mental health needs” and lack of “appropriate care.”
The cause of action sounding in deliberate indifference may not stand. While an inmate in a civil rights action may pursue a constitutional claim of cruel and unusual punishment under the Eighth Amendment for the deliberately indifferent failure by State prison officials to provide adequate medical care, the State of New York is not amenable to suit under 42 USC §1983 in the Court of Claims (Brown v State of New York, 89 NY2d 172; also see Will v Michigan Dept. of State Police, 491 US 58). To the extent that Claimant alleges a state constitutional tort, such only exists where a claimant has no common law or statutory remedy available to him (see Brown v State of New York, 89 NY2d 172, supra; Remley v State of New York, 174 Misc 2d 523, 526; see also Augat v State of New York, 244 AD2d 835, 837, lv denied 91 NY2d 814; but see DeLaRosa v State of New York, 173 Misc 2d 1007, 1010, where New York State’s constitutional provision prohibiting cruel and unusual punishments putatively met the Brown criteria for permitting a constitutional tort claim for money damages when there is a deliberately indifferent response by prison officials to the medical needs of inmates). Regardless, here such cause of action fails because it was not preserved in the notice of intention.
Since there are no other causes of action alleged or preserved in the NI, any causes of action other than medical (psychiatric) malpractice which are alleged in the claim are untimely since the claim was filed on March 12, 2002 and served on March 11, 2002, far more than 90 days after the accrual of the claim on March 13, 2000 (Court of Claims Act §10[3] and §11). The Defendant’s answer, inter alia, preserved such defenses with particularity in its tenth and eleventh affirmative defenses (§11[c]). Accordingly, the claim must be, and hereby is, dismissed.
This result does not come about easily, and I have given this matter much consideration. While Claimant was pro se when he served his notice of intention, he had the benefit of counsel in the preparation of his claim. Presumably counsel reviewed the notice of intention when preparing the claim, and in framing the causes of action, considered the nature of the claims articulated in the notice of intention, and what claims were preserved (Court of Claims Act §11[b]). Yet, when the answer (dated April 18, 2002) raised various affirmative defenses, including a jurisdictional defect in the notice of intention because it did not adequately describe the time when the claim arose (seventh affirmative defense), the lack of jurisdiction over any medical malpractice claim because no CPLR 3012-a certificate accompanied the claim (ninth affirmative defense), or that to the extent that the claim alleged a cause of action for violation of state or federal constitutional rights it was untimely as no notice of intention or claim was served or filed within 90 days of accrual of such cause of action (eleventh affirmative defense), Claimant did nothing. There was no motion to strike any of the affirmative defenses, nor did Claimant or his counsel avail themselves of the remedial remedies of seeking permission to file a late claim (Court of Claims Act §10[6]), or seeking to have the notice of intention be deemed the claim (Court of Claims Act §10[8]), when such relief still would have been timely, to wit, when it would not have been barred by the provisions of article two of the CPLR.
But no such relief was sought. And now when I review the notice of intention, I find no “wiggle” room, no inferable negligence cause of action and no suggestion of allegations of deliberate indifference or cruel and unusual punishment. I read instead allegations of the lack of “appropriate assessment or treatment” of Claimant’s mental health needs, and realize that only experts could opine what is “appropriate.” Even if Claimant’s current theories of liability do not envision such expert testimony, the clear language of the notice of intention and the Defendant’s affirmative defenses should have alerted Claimant that there were drafting incompatibilities between his notice of intention and his claim. Now that the notice of intention and the claim are etched in stone, they cannot, in my opinion, be harmonized, leading to the harsh result today.
That being said and done, Claimant sustained a most horrific injury of self-mutilation, the enucleation of his eye. The graphic image created in the mind of any reader of the event likely pales were one to contemplate its reality. But one cannot be swayed by an emotional reaction to a terrible injury; I must review the facts and the law impassively and may only ascribe blame to the State when the claim is legally sustainable. Here it is not, and for the reasons articulated above and

on the grounds noted, the State’s cross-motion for summary judgment is granted, and otherwise denied as moot. The Claimant’s motion is denied as moot.

July 8, 2005
Rochester, New York


Judge of the Court of Claims

  1. [1]The ostensible involvement of the Prisoners’ Rights Project of the New York City Legal Aid Society is not relevant here, as the notice of intention recites Claimant’s pro se status.
  2. [2]For ease of reference, use of the term “note of issue” also includes the certificate of readiness.
  3. [3]In Defendant’s request for a conference dated December 7, 2004, it asserted that it only became aware of the filing of the note of issue about one week prior thereto.
  4. [4]I have reviewed a tape recording of that conference for purposes of this decision.