New York State Court of Claims

New York State Court of Claims

PARRA v. THE STATE OF NEW YORK, #2008-038-114, Claim No. 108188


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:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michael Rizzo, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 16, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, currently an inmate incarcerated at a State correctional facility, filed this claim on August 25, 2003, seeking damages sustained due to: (1) the alleged negligence of the State in allowing another inmate to cut his face and neck with a razor on June 7, 2002; and (2) the alleged medical malpractice of the State in treating the laceration sustained in the razor attack. Following decisions denying claimant’s motion for summary judgment (Parra v State of New York, UID # 2004-032-064, Claim No. 108188, Motion No. M-68416, Hard, J. [Sept. 17, 2004]) and claimant’s motion to amend the claim (Parra v State of New York, Claim No. 108188, Motion No. M-69600, Hard, J. [Apr. 26, 2005]), the trial of this claim was conducted by videoconference on February 13, 2008, with the parties appearing at Clinton Correctional Facility (CF) in Dannemora, New York and the Court sitting in Saratoga Springs, New York. Claimant offered his own testimony; defendant offered no witnesses. No exhibits were received into evidence.
On June 7, 2002, while incarcerated at Clinton CF, claimant’s face and neck were cut by another prisoner in the prison recreation yard. At the close of claimant’s case, defendant’s counsel made a motion to dismiss the inmate-on-inmate assault cause of action on the ground that the notice of intention to file a claim was served on the Attorney General on November 5, 2002, more than 90 days from June 7, 2002, the date of the accrual of the cause of action.
Court of Claims Act §10 (3) requires that either the claim or a notice of intention to file a claim for personal injuries caused by defendant’s negligence be filed and served upon the Attorney General within ninety days after the accrual of such claim. It is well established that the filing and service requirements of the Court of Claims Act are jurisdictional and must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]) and that the failure to comply with those requirements is a jurisdictional defect that requires dismissal of the claim (see id.; Williams v State of New York, 38 AD3d 646 [3d Dept 2007]; Scott v State of New York, 204 AD2d 424 [2d Dept 1994], lv denied 84 NY2d 806 [1994]). However, Court of Claims Act § 11 (c) provides in part that “[a]ny objection or defense based upon failure to comply with [] the time limitations contained in section ten of [the Court of Claims] [A]ct . . . is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading” (emphasis added).
As noted above, claimant served a notice of intention to file a claim on the Attorney General on November 5, 2002. In its verified answer, defendant asserted that the “Court lacks subject matter jurisdiction over the claim and personal jurisdiction over defendant, the State of New York, as the claim is untimely in that neither the claim nor a notice of intention was served within ninety (90) days of the accrual of the claim, as required by Court of Claims Act, Sections 10 (3) and 11” (Defendant’s Verified Answer, filed Sept. 29, 2003, Sixth Affirmative Defense). However, this claim asserts two causes of action – negligence in failing to protect claimant from an assault by another inmate, and medical malpractice. The affirmative defense in defendant’s verified answer does identify the cause of action against which it is being asserted.[1] Because the defense of untimeliness was not asserted with particularity in regard to the inmate-on-inmate assault cause of action, defendant’s motion to dismiss is denied (see Brown v State of New York, UID # 2005-013-037, Claim No. 103063, Motion No. M-70333, Patti, J. [Aug. 16, 2005]).
It is well established that the State has a duty to safeguard inmates from attacks by fellow inmates (Sanchez v State of New York, 99 NY2d 247 [2002]), but this duty does not require “unremitting surveillance in all circumstances” and the State is not an insurer of inmate safety (id. at 256). The scope of the State’s duty is to protect against risks of harm that are reasonably foreseeable, i.e. the risks the State knew about or should have known about (id. at 253, 255). Claimant testified that another inmate cut him in the face and neck, but the mere fact that claimant was attacked by another inmate in a prison yard with a weapon of some sort is insufficient to establish that defendant knew or had reason to know that claimant would be assaulted. There was no further evidence adduced at trial that would permit the Court to find that the attack on claimant was reasonably foreseeable. Accordingly, this cause of action must be dismissed for failure to establish a prima facie case of negligence.
After claimant was cut in the face and neck on June 7, 2002, his wound was sutured by a surgeon at Clinton CF. The sutures were removed on June 13, 2002, and claimant testified that he was given A&D ointment to minimize the scarring of the wound. Claimant was thereafter moved to Upstate CF on June 26, 2002, and he asked medical staff at Upstate CF whether he could continue to receive the same treatment of A&D ointment. He was told there were no prescriptions “in existence”[2] for him for the treatment. On July 19, 2002, claimant was given the medication Lachydrin for the laceration, and was instructed by medical staff to use it. Claimant testified that he started using Lachydrin and the laceration became more swollen, turning red and other colors as a direct result of using the medication. When claimant complained about these adverse effects, he was instructed by Upstate CF to continue to use the product. In September 2002, claimant filed a Freedom of Information Law request seeking information about the uses of Lachydrin and he received a drug pamphlet that, according to claimant, indicated that the application of the medication to fresh scars would result in the same type of side effects that he was experiencing. Thereafter, he ceased using Lachydrin on his own initiative.
A review of both the claim and the evidence at trial reveals that claimant alleges that Upstate CF medical staff committed ministerial neglect – or provided a “lack of medical assistance” – by failing to read his medical records correctly and find therein a prescription for A&D ointment, and made medical errors in: (1) failing to continue the course of treatment initially devised by Clinton CF medical staff, (2) prescribing Lachydrin, and (3) recommending that claimant continue to use Lachydrin after the side effects developed. “Whether the claim is grounded in negligence or medical malpractice, ‘[w]here medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is a required element of a prima facie case’ ” (Tatta v State of New York, 19 AD3d 817, 818 [3d Dept 2005], lv denied 5 NY3d 712 [2005], quoting Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 [1996]).
First, claimant’s allegation that Upstate CF medical staff improperly read his records lacks corroborating support in the record, particularly because claimant did not offer his medical records into evidence. Thus, the issue presented here is not one of ministerial neglect because no treatment was rendered, as claimant was indeed treated with a medication other than A&D ointment. Rather, claimant challenges the propriety of the treatment that was rendered. Claimant’s allegations that Upstate CF medical staff made medical errors in not continuing the Clinton CF course of treatment, in providing Lachydrin and continuing to recommend Lachydrin after the side effects developed, all sound in medical malpractice as they allege errors in the exercise of medical judgment (see Weiner v Lenox Hill Hosp., 88 NY2d 784, 788 [1996], quoting Bleiler v Bodnar, 65 NY2d 65, 72 [1985] [a cause of action sounds in medical malpractice when conduct that is challenged “ ‘constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physican’ ”]). Whether medication should have been continued or discontinued involves medical questions outside the ordinary experience and knowledge of a layperson and requires expert testimony.
At trial, claimant failed to offer any expert testimony – or any other competent evidence – that address the medical issues that are presented in this claim. In the absence of such evidence, claimant has failed to establish a prima facie case of negligence or medical malpractice, and defendant’s motion to dismiss the claim must be granted (see Tatta v State of New York, supra; Myers v State of New York, 46 AD3d 1030 [3d Dept 2007]).
The Court finds in favor of defendant. Any motions not previously ruled upon are hereby DENIED. The Chief Clerk is directed to enter judgment in favor of defendant, dismissing the claim.
Let judgment be entered accordingly.
April 16, 2008
Albany, New York
Judge of the Court of Claims

[1]. It appears that while the notice of intention was served more than 90 days from the accrual of the inmate-on-inmate assault cause of action, it was served within 90 days of the accrual of the medical malpractice cause of action. Notably, defendant’s counsel did not move to dismiss the medical malpractice cause of action on the grounds that the notice of intention was untimely served.
[2]. Quotations are to the Court’s trial notes or the trial’s digital sound recording.