New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2007-044-549, Claim No. 110512, Motion No. M-72820


Court denied claimant's motion to vacate previous decision, which dismissed one of litigious inmate's numerous claims as jurisdictionally defective due to failure to allege any injury caused by lack of sinus medication. Claimant's request for permission to amend bill of particulars to allege injuries would not avail to correct the jurisdictional defect in the claim

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 11, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, previously moved to compel discovery in 13 separate claims. Defendant opposed the motion and cross-moved to dismiss 12 of those claims. This Court issued a decision and order dated November 14, 2006 (Johnson v State of New York, Ct Cl, Nov. 24, 2006, Schaewe, J., Claim Nos. 111983; 110411; 110471; 109372; 110280; 110504; 110512; 110281; 111009; 111204; 111684; 111892; 109864, Motion No. M-72152, Cross Motion No. CM-72153) which granted defendant's cross motion to the extent that Claim Nos. 111983, 110411, 110471, 109372, 110280, 110512, 111009, 111204, 111892, and 109864 were dismissed in their entirety. The first cause of action in Claim No. 110504, and the first, third and fourth causes of action in Claim No. 110281, were also dismissed. Claimant’s motion to compel disclosure was granted only to the extent that defendant was required to respond to claimant’s disclosure requests filed on March 29, 2006 in Claim No. 110281, as those requests pertained solely to the second and only remaining cause of action therein. The remainder of claimant’s motion was denied as moot. Thereafter, claimant moved for reargument with respect to the dismissal of Claim No. 110280, Claim No. 111892, and Claim No. 109864, which motion remains pending. Claimant now moves to vacate the Court's decision and order of November 14, 2006 with regard to the dismissal of Claim No. 110512, and also moves to amend the bill of particulars in that claim to assert injuries allegedly incurred by defendant's negligent conduct. Defendant State of New York (defendant) opposes the motion and further requests sanctions for claimant's frivolous motion.

Claim No. 110512 alleged that a Southport Correctional Facility prison official wrongfully removed claimant's prescription sinus medication from his cell on March 27, 2004, and thereafter improperly withheld it. In the November 14, 2006 decision and order (id.), the Court dismissed the claim due to claimant's failure to allege any injury caused by the lack of the sinus medication, thus failing to comply with Court of Claims Act §11 (see Tafari v State of New York, Ct Cl, Apr. 3, 2003, Minarik, J., Claim No. 103164, Motion No. M-65946 [UID # 2003-031-013]). The Court additionally found that the claim was untimely, having been required to be filed and served within 90 days after accrual, pursuant to Court of Claims Act §10 (3-b). The 90 days elapsed June 25, 2004, and the claim was filed on February 17, 2005. In his response to defendant's motion papers on this issue, claimant alleged that he served a Notice of Intention on the Attorney General on March 29, 2004, although he did not include proof of service. The Court noted that even if the Notice of Intention had been timely served, claimant was still required to file and serve the verified claim within one year of accrual of the cause of action (Court of Claim Act § 10 [3-b]). Under the assumption that the Notice of Intention was timely served, claimant may have timely filed the claim on February 17, 2005; however it was not served on the Attorney General until October 17, 2005, and was therefore not timely for jurisdictional purposes.

In this motion, claimant argues that he actually served the claim on the Attorney General on March 29, 2004. This is an interesting contention, given that in his sworn affidavit accompanying the claim he alleged that he served the Notice of Intention on the Attorney General on that date. Given that the claim accrued on March 27, 2004, claimant's previous assertion (that it was the Notice of Intention, rather than the claim, served on the Attorney General on March 29, 2004) is more credible, particularly given that the claim was not filed until February 17, 2005, nearly one year later.[1]

Claimant's arguments regarding the timeliness of service are unavailing, in any event.[2] The initial basis for the Court's dismissal of this claim was claimant's failure to allege any injury. Court of Claims Act § 11 (b) contains several conditions which must be met in order to adequately assert a claim against the State. Among those conditions is the requirement that the claim state “the items of damage or injuries claimed to have been sustained” (Court of Claims Act § 11 [b]). Claimant's failure to set forth any injury or item of damage in his claim renders this Court without jurisdiction, and mandates dismissal (see Kolnacki v State of New York, 8 NY3d 277 [2007]; Lepkowski v State of New York, 1 NY3d 201 [2003]). Claimant's attempt to amend his bill of particulars to avoid dismissal on this ground lacks merit, however, as jurisdictional defects cannot be corrected by amendment to the claim (see Sinclair v State of New York, Ct Cl, May 8, 2007, Sise, P.J., Claim No. 110404, Motion No. M-72756 [UID # 2007-028-544]), much less by amendment to the bill of particulars. Claimant's motion to vacate this Court's prior decision dismissing Claim No. 110512 is denied on the merits. That portion of claimant's motion seeking permission to amend his bill of particulars in this matter is denied as moot.

Defendant's request for sanctions against claimant is denied. However, claimant is now warned that the Court considers his conduct in basing the motion to vacate on arguably questionable evidence to be potentially frivolous, and that sanctions for similar motion practice may be forthcoming in the future.

June 11, 2007
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motion:

1) Notice of Motion filed on January 9, 2007; Affidavit in Support of Johnathan Johnson sworn to on December 21, 2006, and attached exhibit.

2) Affirmation in Opposition of Joseph F. Romani, AAG, dated February 2, 2007, and attached Exhibits A and B.

Filed papers: Claim filed on February 17, 2005; Verified Answer filed on November 23, 2005.

[1]. Parenthetically, this causes the Court to pose the rhetorical question: why would claimant re-serve a claim he had already served?
[2]. It is interesting to note that the affidavit of service on the instant motion to vacate states that the notice of motion and affidavit in support were mailed on January 16, 2007 to the Clerk of the Court and the Attorney General; however, the affidavit itself is dated as having been sworn to on December 27, 2006. Claimant apparently has some difficulty with dates.