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
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
, 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