New York State Court of Claims

New York State Court of Claims

CONCEPCION v. COUNTY OF ONEIDA OF THE STATE OF NEW YORK, ONEIDA COUNTY SHERIFF OF THE STATE OF NEW YORK, #2005-028-516, Claim No. NONE, Motion No. M-69466


Synopsis


Movant's application for permission to late file is denied. Movant failed to supply proposed claim.

Case Information

UID:
2005-028-516
Claimant(s):
FRANCISCO CONCEPCION
Claimant short name:
CONCEPCION
Footnote (claimant name) :

Defendant(s):
COUNTY OF ONEIDA OF THE STATE OF NEW YORK, ONEIDA COUNTY SHERIFF OF THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-69466
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
FRANCISCO CONCEPCION, pro se
Defendant's attorney:
For State of New York:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Dewey Lee, Esq.
Assistant Attorney General
and for Defendants:
McLANE, SMITH AND LASCURETTES, L.L.P.BY: Mark W. McLane, Esq.
Third-party defendant's attorney:

Signature date:
February 18, 2005
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Movant's application pursuant to Court of Claims Act § 10(6):


1) Notice of Motion and Supporting Affidavit of Francisco Concepcion (Concepcion Affidavit) filed December 6, 2004, with annexed Exhibits 1-9;


2) Affirmation in Opposition of Assistant Attorney General Dewey Lee (Lee Affirmation) filed February 9, 2005 with annexed Exhibits A-B;


3) Affirmation in Opposition of Mark W. McLane, Esq., (McLane Opposition) filed December 29, 2004 with annexed Exhibits A-C.


Filed Papers: NONE

Movant's application appears to seek permission to file a late claim alleging medical negligence and medical malpractice against the State of New York committed while Movant was in the custody of the Department of Correctional Services and similar claims against the Oneida County Sheriff and the County of Oneida stemming from an incident alleged to have occurred on January 30, 2002 while Movant was incarcerated at the Oneida County Correctional Facility (Concepcion Affidavit, ¶¶ 3-5). Movant asserts that during a meal at the Oneida County Correctional Facility he bit into a piece of metal that lodged in his mouth (id. at ¶ 3). The State of New York and the County of Oneida each have opposed the application.

The motion must be denied for two reasons. First, assuming arguendo, Movant can satisfy the threshold requirement that the application was made before the expiration of the relevant statute of limitations provided by Article 2 of the CPLR (see Court of Claims Act § 10[6]) there is no proposed claim appended to the moving papers, and as such there is no proposed pleading for the Court to consider (Harrell v State of New York, Ct Cl, Corbett, J., Claim No. NONE, UID #2003-005-511, April 3, 2003). Second, again assuming arguendo Movant satisfied the other statutory criteria - the delay in filing the claim was excusable; the State had notice of the essential facts constituting the claim; the State had an opportunity to investigate the circumstances underlying the claim; the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention[1] resulted in substantial prejudice to the State; and there is no other available remedy (see Matter of Gavigan v State of New York, 176 AD2d 1117; Bay Terrace Coop. Section IV v New York State Employees' Retirement System, Policemen's & Firemen's Retirement Sys., 55 NY2d 979; Court of Claims Act § 10[6]), he can not, on this application satisfy the critical element that the claim appears to be meritorious (id.) as he has failed to provide the Court with an expert affidavit of merit to sustain his medical negligence/malpractice claims (Klingler v State of New York, 213 AD2d 378; Schreck v State of New York, 81 AD2d 882 [medical affidavit establishing a causal connection]).

As a final matter, to the extent Movant's papers can be read as alleging causes of action against either the County of Oneida or the Oneida County Sheriff and seeks permission to late file same, such application must be denied. A sheriff and his staff are local employees not State officers within the jurisdiction of this Court (Williams v State of New York, 90 AD2d 861; Bradford v State of New York, [Ct Cl, Collins, J.], Claim No. 100251, UID #2000-015-007, March 2, 2000; Fonfa v State of New York, 88 Misc 2d 343). Similarly, neither Oneida County, which is generally amenable to suit only in that county (County Law § 52, CPLR § 504), nor its employees are subject to the jurisdiction of this Court (Court of Claims Act §9; see Vasile v State of New York, [Ct Cl, Lebous, J.], Claim No. 99806, UID #2000-019-535, September 22, 2000; Williams v State of New York, supra, Walker v State of New York, 104 Misc 2d 221). As a consequence, this Court lacks the subject matter jurisdiction as to those entities.

Accordingly, Movant's motion is denied without prejudice to make a proper application.



February 18, 2005
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1] The Court does not reach the question whether Movant may still file his Claim as of right or what effect the Decision and Order in Concepcion v State of New York, Ct Cl, Scuccimarra, J., Claim No. 108402, filed March 30, 2004, [unpublished] would have on such a filing.