New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2007-044-578, Claim No. 113823, Motion Nos. M-73659, M-73674


Synopsis


Defendant’s motion to dismiss the claim as untimely is granted. The claim supports an accrual date of November 6, 2006 (at the latest), rather than April 18, 2007 as alleged by claimant, for a medical malpractice or medical negligence cause of action. This claim filed June 11, 2007 is therefore untimely. Claimant’s motion for assignment of counsel and for a speedy jury trial is denied as moot.

Case Information

UID:
2007-044-578
Claimant(s):
JAMES PETTUS
Claimant short name:
PETTUS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113823
Motion number(s):
M-73659, M-73674
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
JAMES PETTUS, pro se
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Roberto Barbosa, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 26, 2007
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate proceeding pro se, filed this claim against defendant State of New York (defendant) alleging that his pain medication was inappropriately discontinued. Claimant now moves for assignment of counsel and for a speedy jury trial. Defendant opposes the motion and moves to dismiss the claim as untimely.[1] Because defendant’s motion is potentially dispositive, it will be addressed first. Defendant argues that claimant’s accrual date of April 18, 2007 is not supported by the facts and that the latest possible accrual date, as set forth in the exhibits attached to the claim, is November 6, 2006.

Court of Claims Act § 10 (3) requires that in an action to recover damages for personal injuries caused by negligence or unintentional tort of an officer or employee of the State, the claim must be filed with the Clerk of the Court and served upon the Attorney General within 90 days after the accrual of the claim, unless a notice of intention to file a claim is served within that time. That section further provides that if a notice of intention is timely served, the claimant must file and serve a claim within two years of the claim’s accrual.

Claimant alleges that he suffered serious medical conditions and that defendant’s employees “deliberately and with (indifference) discontinued [his] pain medication without any (penological) or (medical) reasoning” (emphasis in original). Claimant alleges that the claim accrued on April 18, 2007, but as defendant correctly notes, the claim itself contains no factual support for that allegation. However, in support of his claim, claimant attached exhibits which include copies of inmate grievances, letters from Department of Correctional Services (DOCS) officials in response to claimant’s complaints of improper or inadequate medical care, portions of claimant’s medical records, and sick call response sheets. A review of these exhibits is necessary in order to determine whether the claim is timely.

Claimant’s medical information was compiled as a result of his confinement in Elmira Correctional Facility, Great Meadow Correctional Facility (Great Meadow), and Southport Correctional Facility, and encompasses various dates from May 2003 through April 2006. Based upon these documents, any cause of action for medical malpractice or medical negligence would have accrued, at the latest, in April 2006. Clearly, this claim filed on June 11, 2007 is untimely.[2]

A letter from DOCS Deputy Commissioner and Chief Medical Officer Lester N. Wright is also included among the exhibits to the claim. This letter, dated November 6, 2006, was in response to claimant’s concerns about the medical care he received at Great Meadow. Mr. Wright stated that claimant’s complaints had been investigated and that claimant should bring any further health concerns to the attention of the health care staff using the existing sick call procedure. Even if a cause of action for medical malpractice or negligent medical treatment could be stated based upon this letter, this claim, filed more than 90 days thereafter, is untimely.[3]

Defendant’s motion to dismiss the claim is granted.[4] Claimant’s motion for assignment of counsel and for a speedy jury trial is denied as moot.[5]

October 26, 2007
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims

The following papers were read on defendant’s motion to dismiss and claimant’s motion for assignment of counsel and a speedy jury trial:

1) Defendant’s Notice of Motion (Motion No. M-73659) filed on June 29, 2007; Affirmation of Roberto Barbosa, AAG, dated June 27, 2007, and attached Exhibits A through D.

2) Claimant’s opposition to defendant’s Notice of Motion sworn to July 3, 2007, and attached exhibits.

3) Claimant’s Notice of Motion (Motion No. M-73674) filed on July 6, 2007; “Affidavit/Affirmation” of James Pettus sworn to on July 3, 2007, and attached exhibits.

4) Affirmation in Opposition of Roberto Barbosa, AAG, dated July 24, 2007, and attached Exhibits A through C.


Filed papers: Claim filed on June 11, 2007.


[1]. Claimant filed documents on July 9, 2007 which “take (exception)” to defendant’s motion because it contains neither a claim number nor a motion number. Claimant was thereafter advised by the Clerk of the Court of both the claim number and motion number, and defendant also served him with an affidavit in opposition to his motion. Nonetheless, claimant has still failed to address the merits of defendant’s motion.
[2]. There is no evidence that a notice of intention to file a claim was served upon the Attorney General’s Office.
[3]. Again, there is no evidence that a notice of intention was served.
[4]. Defendant argues that claimant’s motion for assignment of counsel and a speedy jury trial is frivolous, and requests sanctions. Given that claimant’s motion is moot, the Court will not address defendant’s request at this time. However, the Court notes that despite repeated denials of identical motions in the past, claimant has consistently made the same motion without correcting the defects set forth in prior decisions (see n 5, infra).

[5]. In any event, claimant's motion would be denied on the merits. Claimant’s cause of action for medical malpractice or negligent medical treatment is of the type that is normally handled by attorneys on a contingent fee basis. Further, claimant has failed to serve the motion on the appropriate County Attorney, and the request for assignment of counsel may be denied on that basis alone.
Moreover, there is no right to a speedy trial in civil actions, prisoner pro se claims are scheduled at the Court’s discretion, and there is no right to a jury trial in the Court of Claims, all of which claimant has previously been informed (see e.g. Pettus v State of New York, Ct Cl, June 4, 2007, Schaewe, J., Claim No. 112504, Motion Nos. M-73126, M-73240 [UID #2007-044-547]; Pettus v State of New York, Ct Cl, May 15, 2007, Schaewe, J., Claim No. 112504, Motion No. M-72997). Accordingly, claimant’s request for a speedy jury trial would also be denied.