New York State Court of Claims

New York State Court of Claims

BOOKHART v. THE STATE OF NEW YORK, #2006-015-132, Claim No. 110460, Motion No. M-72020


Claim was dismissed for failure to comply with the time limitations set forth in Court of Claims Act § 10 (3).

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:
Jerome Bookhart, Pro SeNo Appearance
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Dennis M. Acton, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 13, 2006
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant moves for summary judgment dismissing the claim pursuant to CPLR 3212 on the ground that this Court lacks jurisdiction to hear the claim. The motion is granted without opposition and for the reasons which follow. On June 24, 2004 claimant served a notice of intention to file a claim which was received by the Attorney General on June 28, 2004. It was alleged in the notice that on June 2, 2003 while an inmate at Ulster Correctional Facility a physician prescribed the claimant Simvastatin, also known as Zocor, without conducting the appropriate blood tests to determine whether the medication was appropriate for the claimant. It was further alleged that the medication prescribed was, in fact, not appropriate and that, as a result of taking the medication the claimant suffered myopathy manifested by muscle pains or weakness. He was transferred to Mid-State Correctional Facility from Ulster Correctional Facility in July of 2003.

On February 4, 2005 claimant filed a claim which included a recitation of treatment rendered at Mid-State Correctional Facility through May 10, 2004. As alleged in the claim, in November of 2003 a physician at Mid-State Correctional Facility ordered certain blood tests to be performed which resulted in the physician directing the claimant to discontinue use of Simvastatin. As recited in the claim, the treatment rendered subsequent to the cessation of Simvastatin consisted of HIV testing, treatment of shingles and a biopsy. Claimant alleges that on April 2, 2004 he developed painful bumps on the left side of his body which were not diagnosed until April 13, 2004. At that time he was diagnosed with shingles which, claimant alleges, had progressed beyond the point of effective treatment.

The law is clear that the State's waiver of immunity under Section 8 of the Court of Claims Act is contingent upon claimant's compliance with specific conditions set forth in article II of the Court of Claims Act (see Lepkowski v State of New York, 1 NY3d 201, 206). "Because suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Long v State of New York, 7 NY3d 269, 276 quoting Lichtenstein v State of New York, 93 NY2d 911, 913 (other citations omitted)). As noted by the Court of Appeals in Lyles v State of New York, 3 NY3d 396, there is a distinction between statutes of limitations and the filing limitations in the Court of Claims Act. "The time limitations of the Court of Claims Act ...are distinctly concerned with the subject matter jurisdiction of the Court of Claims as the State has waived its sovereign immunity against suit only to the extent that claimants comply with the provisions of the statute" (Id. at 400, citing Alston v State of New York, 97 NY2d 159, 163). The failure to timely file a claim is thus a jurisdictional defect which deprives this Court of subject matter jurisdiction to hear the claim (Id.). In this regard, Article II, section 10 of the Court of Claims Act makes clear that "[n]o judgment shall be granted in favor of any claimant unless such claimant shall have complied" with the time limitations applicable established in that section. Section 10(3) sets forth the time limitations applicable to the instant claim as follows:
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 while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim.
Here, the notice of intention to file a claim was received by the Attorney General on June 28, 2004, more than 90 days following either the prescribing of Zocor to the claimant on June 2, 2003 or his discontinuation of the medication in mid-November, 2003. As the notice of intention was untimely the claim received by the Attorney General on February 4, 2005 and filed with the Clerk of the Court on the same date is also untimely requiring dismissal.

With respect to the treatment rendered to claimant through May 10, 2004 and to the extent the claim alleges the failure to timely diagnose shingles on April 2, 2004, the claim filed on February 4, 2005 was untimely as to these issues as well.

For the foregoing reasons, the defendant’s motion to dismiss the claim is granted.

October 13, 2006
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated July 20, 2006;
  2. Affidavit of Dennis M. Acton sworn to July 20, 2006 with exhibits.