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
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
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
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
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.