New York State Court of Claims

New York State Court of Claims

OLEMAN v. THE STATE OF NEW YORK, #2007-030-526, Claim No. 113119, Motion Nos. M-72850, CM-72956


Synopsis


Claimant’s motion for “permission to re-file a Notice of Intention” denied. Defendant’s cross-motion to dismiss granted in part and denied in part. The notice of intention does not satisfy its necessary and essential function of providing sufficient particulars to enable defendant to initiate an investigation of its potential liability, saying only that claimant fell down in July, 2005 - no date is specified - in Downstate Correctional Facility, no location beyond the facility itself is alleged; and that the fall necessitated surgery to claimant’s spine. Negligent acts occurring within ninety (90) days of service of the claim itself on December 18, 2006 survive.

Case Information

UID:
2007-030-526
Claimant(s):
ROBERT OLEMAN
Claimant short name:
OLEMAN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113119
Motion number(s):
M-72850
Cross-motion number(s):
CM-72956
Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
ROBERT OLEMAN, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: J. GARDNER RYAN, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
May 14, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read and considered on claimant’s motion and on defendant’s


cross-motion:

1,2 Notice of Motion; Affidavit in Support of Motion by Robert Oleman, Claimant and attachments

3,4 Notice of Cross-Motion; Affirmation by J. Gardner Ryan, Assistant Attorney General

5,6 Filed papers: Claim, Answer

In his claim Robert Oleman alleges that defendant’s agents at several correctional facilities failed to provide him with adequate medical care and proper facility placement between June 29, 2005 and October 25, 2006, causing him to suffer injury. In its Answer, in addition to general denials, Defendant asserts two affirmative defenses, including its first affirmative defense that claimant failed to serve an adequate notice of intention to file a claim or a claim within ninety (90) days of its accrual.

Defendant acknowledges having received a Notice of Intention on September 29, 2005 in which claimant indicates only that “in July, 2005” he was injured at Downstate Correctional Facility in a fall, and received spinal surgery for the injuries suffered in the fall. Subsequently, a claim was served on Defendant on December 18, 2006, and filed in the Clerk’s office the same day. [Affirmation by J. Gardner Ryan, Assistant Attorney General, ¶4]. In the claim, claimant refers to a fall in a corridor “on or about July 29, 2006”[1] at Downstate, whereby he injured his cervical spine. [Claim Number 113119, ¶¶ 10 and 11]. He was transferred to Auburn on or about August 10, 2005. [Ibid. ¶ 15]. He received surgery to his cervical spine at an outside hospital on or about August 28, 2005. [Ibid. ¶ 18]. The claim then further alleges that upon his return to Auburn approximately two (2) weeks later, he remained in the facility clinic for the next eight (8) months, but did not receive physical therapy as had been directed by his doctor after his surgery. [Ibid. ¶ 19]. In April 2006 he was transferred to Five Points Correctional Facility, and received “proper physical therapy for his hip problem” but did not receive physical therapy for his neck, nor has he received such therapy to date.[2] [Ibid. ¶¶ 20 and 21].

Claimant now moves for an order granting him “permission to re-file a Notice of Intention if necessary and for such other and further relief.” [Notice of Motion]. In his Affidavit in Support of his motion, Mr. Oleman reiterates many of the facts asserted in the claim, except that slight differences in the date of an alleged “injury” on July 15, 2005 appear, without reference to an actual fall. He explains that he received a form copy of a Notice of Intention while in the hospital at Auburn on August 27, 2005, but received bad advice on how it should be utilized, with the result being that he initially filed a Notice of Intention in the Clerk’s office, and it was returned. [Affidavit in Support of Motion, Exhibit B]. He then served the Notice of Intention on the Attorney General’s office. [Ibid. Exhibit C].

There is no application in the Court of Claims for “permission to re-file a Notice of Intention.” Perhaps counsel for the defendant is correct that claimant has reacted to seeing the affirmative defense in the answer concerning the alleged inadequacies of the Notice of Intention, and thus seeks to fix matters. Nonetheless, such is not available, and claimant’s motion is in all respects denied.

Defendant’s cross-motion seeks dismissal of the claim, based upon claimant’s purported failure to satisfy the condition precedent of serving an adequate notice of intention within ninety (90) days of his claim’s accrual resulting in a toll of the period within which claimant was required to serve and file his claim. Defendant argues that the notice of intention does not satisfy its necessary and essential function of providing sufficient particulars to enable defendant to initiate an investigation of its potential liability.

Court of Claims Act §11(b) requires that a Notice of Intention “ . . . state the time when and place where such claim arose, [and] the nature of same . . . ” The purpose of the Notice of Intention is to put the Defendant State on notice of potential suit against it, so that it may investigate the claim and infer a theory of liability. It also acts to extend the period within which a Claim must be served and filed, provided it has been properly served and contains the required information. While it need not be scrutinized with the same attention as a pleading, it should nonetheless perform its notice function, as well as provide specific enough information to determine whether any subsequently served and filed Claim is timely filed.

The notice of intention served upon the defendant here, viewed as expansively as possible, simply does not provide enough information to enable the defendant to initiate an investigation to determine its potential liability. The notice of intention says only that claimant fell down in July 2005 - no date is specified - in Downstate Correctional Facility, no location beyond the facility itself is alleged; and that the fall necessitated surgery to claimant’s spine. What the nature of the cause of action is, or what role the State of New York is alleged to have had in any cause of action is simply not stated. Receipt of such a notice of intention in September 2005, that does not even contain a date of accrual, or a “hint indicating ‘the manner in which the claimant was injured and how the State was negligent’ (citation omitted)” [Sega v State of New York, 246 AD2d 753, 755, lv denied, 92 NY2d 805 (1998); Schneider v State of New York, 234 AD2d 357 (2d Dept 1996); cf. Cain v State of New York, 11 Misc 3d 1066(A) (Ct Cl 2006)], did not operate to extend the time within which to serve and file a claim. See Court of Claims Act §10(3).

With regard to the claim itself, the only apparent negligent acts occurring within ninety (90) days of service of the claim on December 18, 2006 would arguably be the purported failure to provide physical therapy for Claimant’s neck “to date”or October 25, 2006. [See Claim Number 113119, ¶21]. Accordingly, defendant’s cross-motion to dismiss is granted in part and denied in part. The cross-motion is granted to the extent that any causes of action accruing more than ninety (90) days before service of the claim on December 18, 2006 are dismissed - this would include any purported negligence surrounding Claimant’s fall in July 2005 - but is otherwise denied.

May 14, 2007
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims



[1]. From the context, it is clear that Claimant intended to write the year 2005, as conceded by Defendant in its moving papers.
[2]. The claim is signed and verified as of October 25, 2006.