New York State Court of Claims

New York State Court of Claims
WATSON v. THE STATE OF NEW YORK, #2006-032-004, Claim No. 111107, Motion Nos. M-70528, M-70579

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):
M-70528, M-70579
Cross-motion number(s):

Claimant’s attorney:
Charles Watson, Pro Se
Defendant’s attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Belinda A. Wagner, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
January 27, 2006

Official citation:

Appellate results:
AFFIRMED 35 AD3D 985 3D DEPT 2006
See also (multicaptioned case)


Defendant moves this Court pursuant to CPLR 3211 to dismiss the claim for failure to comply with Court of Claims Act § 10 (3) and § 11. Claimant opposes this relief.

In July 2005, claimant, an inmate, filed an action alleging that personnel at Clinton Correctional Facility discontinued certain medical treatments for a two week period in January 2005, in retaliation for claimant filing a grievance (first and second causes of action). Claimant suffers from hepatitis C and was receiving a course of viral therapy. Viral therapy will only be continued, however, if a patient's viral loads decline at certain specified rates. Claimant alleges that as a result of his interruption in treatment, claimant did not reach the desired levels and, therefore, his viral therapy was discontinued. Claimant further alleges that he was not provided adequate winter clothing to participate in outdoor recreation from June 2003 through May 2005 (third and fourth causes of action). In support of its motion, defendant contends that the claimant's first and second causes of action accrued when claimant's treatment was interrupted in January 2005, and claimant failed to serve and file his claim within 90 days after this date, as required by the Court of Claims Act.
It is well settled that a claim accrues for purposes of the Court of Claims Act when the injury is suffered (see Konigsberg v State of New York, 256 AD2d 982, 982-983 [3d Dept 1998]. Claimant's injury occurred when his treatment was interrupted between January 14, 2005 and January 27, 2005. Thus, claimant was required to file his claim raising these allegations by April 27, 2005. Given that claimant did not file his claim until July 5, 2005, claimant's first and second causes of action are dismissed. The Court is unpersuaded by claimant's contention that his claim did not accrue until April 29, 2005, because he continued to receive treatment for his condition until this date. Here, the gravamen of claimant's first and second causes of action is that defendant committed medical malpractice in interrupting claimant's treatment, and not that he received continuing treatment for his condition (see Salquerro v State of New York, 212 AD2d 827, 828 [3d Dept 1995]).
Likewise, claimant's third and fourth causes of action are also dismissed. With respect to claimant's third cause of action, claimant alleges that defendant failed to provide suitable seasonal clothing and, as a result, claimant did not participate in outdoor recreation and was not entitled to two additional showers per week because he did not participate in recreation. Specifically, claimant alleges that upon his arrival at Clinton Correctional Facility in June 2003, he was not issued a hat, gloves or thermal underwear. He further states that he was housed at Clinton through May 2005, and that during his incarceration at this facility he was never issued these items. Although Correction Law § 137 requires defendant to provide suitable seasonal clothing to inmates, claimant does not allege that he ever requested the clothing, particularly after the first winter of his incarceration in 2003-2004. Based on claimant's allegations, the Court determines that this cause of action accrued during the first winter that he arrived at Clinton, and that this cause of action is untimely inasmuch as he did not file his claim within 90 days of this time period. The Court declines to view claimant's alleged failure to receive winter clothing as a continuing wrong inasmuch as there is no allegation that claimant requested clothing and was denied. As such, claimant's third cause of action is dismissed as untimely.
With respect to the fourth cause of action, claimant alleges a constitutional tort. Absent circumstances not presented here, constitutional violations do not give rise to a private right of action for damages (see Martinez v City of Schenectady, 97 NY2d 78, 83 [2001]). As such, claimant's fourth cause of action is dismissed.
Accordingly, defendant's motion M-70528 is granted and the claim is dismissed. Claimant's motion M-70579 is withdrawn.

January 27, 2006
Albany, New York

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion filed August 4, 2005;
2. Affirmation of Belinda A. Wagner dated August 1, 2005; Exhibit A;
3. Notice of Motion filed August 17, 2005;
4. Affidavit of Charles Watson sworn to August 11, 2005;
5. Reply Affirmation of Belinda A. Wagner filed September 15, 2005.

[1]Claimant moved to dismiss defendant's answer. Defendant, however, did not submit an answer. Claimant thereafter requested that his motion be withdrawn and his submissions heard in opposition to defendant's motion.