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.
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 ). As such, claimant's fourth cause of action is
Accordingly, defendant's motion M-70528 is granted and the claim
is dismissed. Claimant's motion M-70579 is withdrawn.