New York State Court of Claims

New York State Court of Claims

ELLIS v. THE STATE OF NEW YORK, #2007-030-012, Claim No. 111239


Pro se inmate’s claim dismissed because the Court lacks jurisdiction over the claim, and because claimant has failed to establish a prima facie case of medical malpractice or ministerial neglect. Notice of Intention served more than ninety (90) days after accrual; claim untimely served by regular mail. Answer plead defenses with particularity

Case Information

1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
April 27, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Harold Ellis alleges in Claim number 111239 that defendant’s agents failed to provide him with adequate medical care in that he was wrongfully exposed to tuberculosis and failed to receive treatment while he was incarcerated at Downstate Correctional Facility (hereafter Downstate). Trial of the matter was held on March 30, 2007.

As an initial matter, defendant moved to dismiss the Claim based upon defenses raised in its answer. The defendant argued that the Court lacked jurisdiction because of Claimant’s failure to serve the Claim upon the Office of the Attorney General either personally or by certified mail, return receipt requested as required, and upon the ground that the Claim was untimely served and filed. Pursuant to the Claim, the accrual date was June 18, 2005. The Assistant Attorney General indicated that their office received a Notice of Intention To File a Claim on October 17, 2005, more than ninety (90) days after such accrual. It appears to have been served by certified mail, return receipt requested. [Exhibit A and Exhibit 1]. The Claim itself was received on November 2, 2005, according to the Assistant Attorney General, and was served by regular mail. The affidavit of service associated with that Claim - at least the copy filed in the Office of the Clerk of the Court of Claims - indicates the Claim was served by regular mail on October 12, 2005.

Documents produced by Claimant referred to service of documents on July 3, 2006 and September 18, 2006, the latter date apparently referring to service of a document called “Supplemental Addendum to Claim.” Mr. Ellis also said that he “always sent things to the attorney general by certified mail.”[2]

A review of the Court’s file indicates that a Claim was filed in the Clerk’s Office on August 8, 2005 with no affidavit of service attached or other indication of how and if it was served on the Office of the Attorney General; and an amended Claim was filed in the Clerk’s Office on November 2, 2005 containing an affidavit of service indicating that a Claim was served on the Attorney General’s Office on October 12, 2005 but without indicating that it was served by certified mail, return receipt requested. The Assistant Attorney General attested that he had no record of any Claim prior to November 2, 2005.

Claimant could not say why there was a discrepancy in dates, and indicated he would check his records if he could. He thought, however, that he had indeed served the Claim as required. Because of the confusion, the Court reserved decision on the defendant’s motion, and Claimant was given an opportunity to provide the Court with proof that he had served the Claim by certified mail, return receipt requested as required, within two (2) weeks of the trial date.

As of today’s date, the Court has not received proof of service by certified mail, return receipt requested, and, accordingly, is not convinced that the Claim was served as required. The Court received a letter from Claimant on April 12, 2007, indicating that he reviewed his legal work, and then remembered that there were no certified mail receipts available to him in the law library or at his housing unit when he mailed the Claim out, thus it was not sent out by that method.

Notably, by its terms, the only Claim received by the State of New York in November, 2005, states a date of accrual of June 18, 2005, and the latest date of such accrual would be June 22, 2005 when Claimant alleges he failed to receive proper medication for his tuberculosis. Accordingly, the Claim was also untimely served. It is also noted that the Notice of Intention was served more than ninety (90) days of such accrual, thus the time within which to serve and file a Claim was not tolled.

The filing and service requirements contained in §§ 10 and 11 of the Court of Claims Act are jurisdictional in nature and must be strictly construed. Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 (1989). Service upon the Attorney General by ordinary mail is insufficient to acquire jurisdiction over the State, as is mail service by any means other than certified mail, return receipt requested, unless the State has failed to properly plead jurisdictional defenses or raise them by motion. Court of Claims Act § 11(c); Edens v State of New York, 259 AD2d 729 (2d Dept 1999); Philippe v State of New York, 248 AD2d 827 (3d Dept 1998). Additionally, the Claimant has the burden of establishing proper service. Boudreau v Ivanov, 154 AD2d 638, 639 (2d Dept 1989). Regulations require that proof of service be filed with the Chief Clerk within ten (10) days of service on the Defendant. 22 NYCRR § 206.5(a).

Here, the State’s answer pleaded both defenses with particularity, preserving the issue for review, and Claimant has not established timely and proper service as required. Accordingly, for these reasons alone the Claim should be dismissed.

More substantively, Claimant testified concerning his Claim of inadequate medical care. He described being “quarantined for no reason” by the New York City Department of Correction, and submitted a form from that department that appears to note negative results for tuberculosis tests in June 2004. [Exhibit 6]. He also submitted a form from New York State Department of Correctional Services (hereafter DOCS) regarding his rejection for food service work based upon lack of medical clearance on July 29, 2005. [Exhibit 7]. A grievance complaint was also filed, which he testified he never heard about. [See Exhibit 8].

At Rikers Island Correctional Facility he stated he was wrongfully quarantined for tuberculosis on June 16, 2004, and in August 2004 he stated that tests showed he was negative for tuberculosis while still in City custody. In June 2005 he “came to Downstate.” On June 18, 2005 he was told by one of the nurses at Downstate that he “had been exposed to TB and that [he] would be getting INH [medication] on June 22, 2005. It was now July 21st and no medication.” He then filed a grievance, but never received a reply. He received medication on July 26, 2005, but said that was late and not in keeping with the dosage frequency requirements. He argued that he was transferred to Fishkill Correctional Facility (hereafter Fishkill) after six (6) weeks at Downstate without having received regular medication. Once at Fishkill, however, he said he “started getting medication regularly.” Mr. Ellis explained how distressing it was to be thinking he did have the disease when he did not, then ultimately being told he was exposed to it, and the effect of all this on his emotional well-being. He said that he felt he had contracted this disease while in DOCS custody, and that he should be compensated.

No other witnesses testified and no other evidence was submitted.

It is “fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons,” including proper diagnosis and treatment. Rivers v State of New York, 159 AD2d 788, 789 (3d Dept 1990), lv denied 76 NY2d 701 (1990).

In a medical malpractice Claim, the Claimant has the burden of proof and must prove (1) a deviation or departure from accepted practice and (2) evidence that such deviation was the proximate cause of the injury or other damage. A cause of action is premised in medical malpractice when it is the medical treatment, or the lack of it, that is in issue. A Claimant must establish that the medical caregiver either did not possess or did not use reasonable care or best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field. The “ ‘Claimant must [demonstrate] ***that the physician deviated from accepted medical practice and that the alleged deviation proximately caused his . . . injuries’ (Parker v State of New York , 242 AD2d 785, 786).” Auger v State of New York, 263 AD2d 929, 931 (3d Dept 1999). Without such medical proof, no viable Claim giving rise to liability on the part of the State can be sustained. Hale v State of New York, 53 AD2d 1025 (4th Dept 1976), lv denied 40 NY2d 804 (1976). A medical expert’s testimony is necessary to establish, at a minimum, the standard of care. Spensieri v Lasky, 94 NY2d 231 (1999).

If a Claim can be read to allege simple negligence, or medical negligence, then the alleged negligent omissions or acts by the State’s employees can be readily determined by a fact finder using common knowledge without the necessity of expert testimony. Coursen v New York University Hosp.-Cornell Med. Ctr., 114 AD2d 254, 256 (1st Dept 1986). Similarly, the State may be found liable for ministerial neglect if its employees fail to comply with an institution’s own administrative procedures and protocols for dispensing medical care to inmates. Kagan v State of New York, 221 AD2d 7, 10 (2d Dept 1996).

It is Claimant who has the burden of proof to establish his Claim. On his direct case, only the testimony of the Claimant was presented in support of any Claim that he contracted tuberculosis while in DOCS custody, or that he failed to receive appropriate treatment. Claimant established only that in June 2004 while in the custody of the New York City Department of Correction he tested negative for tuberculosis, and that in June 2005 while in State custody he may have tested positive. It is not clear from the records submitted or the testimony whether “exposure” to tuberculosis - the only information provided - means one has contracted it. No competent medical evidence was presented on Claimant’s direct case, through a treating physician or an expert witness whose opinion was based upon the available medical records, to support the allegation of medical malpractice connected to any failure to diagnose or timely treat. There is no showing that treatment was delayed, or that any delay in treatment caused Mr. Ellis compensable injury. There was no medical evidence on any medical issue and thus no proof that accepted standards of care were not met. Accordingly, the Claim of medical malpractice must be dismissed.

Additionally, from the record on Claimant’s direct case there is no indication that the actions of medical caregivers amounted to simple negligence or ministerial neglect. Coursen v New York University Hosp.-Cornell Med. Ctr., supra; Kagan v State of New York, supra. To the extent the Claim can be read to assert such theories, any cause of action for negligence or ministerial neglect is also dismissed.

Claim Number 111239 is hereby dismissed in its entirety because the Court lacks jurisdiction over the Claim, and because Claimant has failed to establish a prima facie case.

Let judgment be entered accordingly.

April 27, 2007
White Plains , New York

Judge of the Court of Claims

[2]. All quotations are to trial notes or audio recordings unless otherwise indicated.