New York State Court of Claims

New York State Court of Claims

GREEN, SR v. STATE OF NEW YORK, #2007-039-026, Claim No. 112666-A, Motion No. M-72309


Synopsis


Defendant’s motion to dismiss the claim is granted. Claimant served upon the Attorney General a notice of intention to file a claim on February 18, 2005 and a claim on August 21, 2006 wherein he alleged that his claim arose on December 2, 2004. The Court concludes that since the claim set forth a separate and distinct cause of action from that which is set forth in the notice of intention to file a claim, and the Court is unable to determine whether all of the allegations occurred in connection with the same incident, the claim, which was filed more than 90 days after accrual of the cause of action and without service of a related notice of intention within 90 days thereof, is untimely.

Case Information

UID:
2007-039-026
Claimant(s):
ROBERT ANTHONY GREEN, SR.
Claimant short name:
GREEN, SR
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112666-A
Motion number(s):
M-72309
Cross-motion number(s):

Judge:
JAMES H. FERREIRA
Claimant’s attorney:
Robert Anthony Green, Sr., pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Belinda A. WagnerAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 17, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant served a notice of intention to file a claim (hereinafter “notice of intention”) upon the Attorney General of the State of New York on February 18, 2005 wherein he alleged, in relevant part, that his claim arose “[o]n December 2, 2004, when State Officials, and employees, etc subjected inmate to Cruel and Unusual Punishment . . . [b]y Punitive actions taken against the inmate, based exclusively upon request for health care services, etc.” In a footnote to this allegation, claimant further alleged that
“[w]hen on or about the time 9:30 a.m., C.O. Sgt Barge, was notified by J. Mitchell, RN . . . [a]fter medically assessing the inmate, and providing medical attention by health care service, determined that the inmate sick-call request . . . [w]as not an emergency, based an, facility memorandum for emergency treatment / sick-call dated 8/27/03 . . . [d]eclaring that the inmate interfered with his regular, nursing duties . . . [r]esulting to the inmate being escorted back to dormitory cube, placed on full-bed (Confine/restricted to cube) . . . pending disciplinary action, by an written misbehavior report.”
Thereafter, claimant served a claim upon the Attorney General on August 21, 2006 wherein he alleged, in relevant part, that his claim accrued on December 2, 2004 and that
“(NYS/DOCS) RN, John Mitchell, and other State Officials at Franklin Correctional Facility, acted in bad faith . . . [w]hen unexpectively declined/subdue (withdraw) to submit, inmate medical order (Medicine prescription) to pharmacy, for (15) days . . . [a]fter an adduce (Proof of argument) about a facility policy . . . [w]hich caused inmate substantial pain and suffering of injuries for (15) days . . . [a]s a direct result of their cruel and unusual punishment and willful neglect to exercise reasonable/ordinary care, etc., to assure safety (Health/well-being, etc.) of inmate in its penal institution.”

Defendant now moves the Court for an order dismissing the claim as untimely pursuant to Court of Claims Act §§ 10 (3) and 11 (b). In support of its motion, defendant argues that the notice of intention and the claim set forth two different incidents and, therefore, the claim is late because a related notice of intention was not served within 90 days of the accrual of the claim, in this case, within 90 days after the prescription delay allegedly occurred. Claimant opposes the motion.

Court of Claims Act § 10 (3) requires “[a] claim to . . . be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim” for negligence claims. “[W]hen a notice of intention is followed by a claim that expands on the allegations of the notice of intention, the question is whether the notice of intention gave defendant notice of what claimant alleges in the claim” (Blaylock v State of New York, 13 Misc 3d 1219(A) [Ct Cl 2006]).

In Blaylock v State of New York, (supra), “the claim articulate[d] three separate bases for liability [-] negligence leading to claimant’s assault, medical malpractice and wrongful institution of disciplinary proceedings [- and] the notice of intention referenced only the first of these theories and contained no mention of claimant’s medical care or the disciplinary proceedings instituted against him.” The Court concluded that “since the notice of intention contained no mention of [medical malpractice or wrongful institution of disciplinary proceedings], it did not serve to extend the statutory filing period for those causes of action and, since the claim itself was interposed more than 90 days following accrual, those causes of action are untimely and the court lacks jurisdiction over them” (id.). Likewise, in Legall v State of New York, (10 Misc 3d 800, 804 [Ct Cl 2005]), the Court held that claimant’s “[choice] to later submit a claim that went way beyond the parameters of the notice of intention does not mean . . . that the court lacks jurisdiction over the entire claim, but instead means that to the extent that the claim goes beyond the notice of intention, the court lacks jurisdiction.”

Here, however, the claim does not expand on the allegations of the notice of intention. Rather, the claim sets forth a separate and distinct cause of action from that which is set forth in the notice of intention. While the notice of intention contains allegations offered to support a cause of action for wrongful disciplinary actions following defendant’s determination that claimant’s sick call request was not an emergency, the claim only contains allegations offered to support a cause of action for wrongfully withholding medication. Although the notice of intention and the claim contain the same date of accrual, the Court is unable to conclude therefrom that all of the allegations occurred in connection with the same incident. Thus, the Court is compelled to find that the notice of intention did not provide defendant with notice of the allegations of the claim. Moreover, since the claim was served and filed more than 90 days after its accrual, it must be deemed untimely, and the Court is without jurisdiction of the claim (see Blaylock v State of New York, supra).

Accordingly, it is hereby ordered that M-72309 is hereby granted and the claim is dismissed.


July 17, 2007
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:
  1. Notice of Motion to Dismiss dated September 22, 2006;
  2. Affirmation in Support of Motion to Dismiss dated on September 22, 2006 with exhibits; and
  3. Claimant’s Response to Defendant’s Notice of Motion to Dismiss dated October 12, 2006.