New York State Court of Claims

New York State Court of Claims

PARMES v. THE STATE OF NEW YORK, #2006-016-042, Claim No. 111955, Motion No. M-71412


Synopsis



Case Information

UID:
2006-016-042
Claimant(s):
JOSE PARMES
Claimant short name:
PARMES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111955
Motion number(s):
M-71412
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant’s attorney:
Jose Parmes, Pro se
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: Mary B. Kavaney, Esq., AAG
Third-party defendant’s attorney:

Signature date:
June 2, 2006
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant moves to dismiss the claim of Jose Parmes. In his claim, Mr. Parmes alleges that he has failed to receive medically prescribed footwear at Mid-Orange Correctional Facility, and he states that he “initiated this action” when he sent a notice of intention to defendant on November 19, 2004. Such notice of intention states in relevant part that:
The incident arose at Mid-Orange Corr. Facility. Claimant is proceeding Pro-Se until further notice. Claimant [makes] this claim after numerous follow-ups with the facility health care, and as recent as September 2004. Claimant has suffered and continues to suffer numerous ailments, discomforts, physically, emotionally, and personally, due to the deliberate indifference and negligence of the N.Y.S.D.O.C.S., and the Mid-Orange Corr. Facility health care department. Proper health care and medical attention must be provided by N.Y.S.D.O.C.S. and its [agents].


Section 11.b of the Court of Claims Act (the “Act”) provides that a notice of intention must state the time when and place where the claim arose, along with the nature of the claim. With regard to the nature of the claim, in Heisler v State of New York, 78 AD2d 767, 433 NYS2d 646, 648 (4th Dept 1980), it was stated that “[w]hat is required is not absolute exactness, but simply a statement made with sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances. The statement must be specific enough so as not to mislead, deceive or prejudice the rights of the State.” In this case, Parmes’ notice of intention is vague and general and does not make any reference to a failure to provide medically prescribed footwear. In short, it does not comply with §11.b of the Act.

In view of the foregoing, it must be determined whether the claim can stand on its own, independent of the notice of intention. The claim does not state any particular time when Parmes was allegedly denied the medically prescribed footwear, but a fair reading is that as of the date of the claim’s service and filing (February 6, 2006), he still had not received the footwear. Accordingly, the claim would be timely for the 90-day period proceeding February 6, 2006, i.e., from November 8, 2005 forward. See §10.3 of the Act. Defendant makes no other argument that the claim fails to comply with §11.b of the Act, and I find that it is sufficient thereunder.

In view of the foregoing, having reviewed the submissions[1], IT IS ORDERED that motion no. M-71412 be granted to the extent that the claim be dismissed with respect to the time period prior to November 8, 2005, and that such motion otherwise be denied.


June 2, 2006
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]The following were reviewed: defendant’s notice of motion with affirmation in support and exhibits 1 and 2; and claimant’s “reply to motion” with undesignated exhibits.