Claimant, an inmate proceeding pro se, filed this claim to recover for the
alleged negligent medical treatment he received from defendant State of New York
(defendant) while he was incarcerated at Woodbourne Correctional Facility
(Woodbourne). Defendant answered and asserted several affirmative defenses.
Claimant now moves for “an ORDER NOT TO DISMISS THE CLAIM.”
Defendant cross-moves to dismiss the claim.
Claimant has provided only a notice of motion, a copy of a Report of Operation
from Albany Medical Center Hospital, and an affidavit of service. Claimant has
not provided an affidavit in support of this motion as required by CPLR 2214 and
the Uniform Rules for the Court of Claims § 206.8 (a) (see also 4
Weinstein-Korn-Miller, NY Civ Prac ¶ 2214.02). Without a supporting
affidavit, the Court cannot determine what affirmative relief claimant may be
requesting in his “motion.” However, the Court will treat
claimant’s papers as having been submitted in opposition to
defendant’s cross motion to dismiss.
Defendant argues that the Court of Claims does not have jurisdiction over
claimant’s cause of action for violation of the United States
Constitution, thus requiring dismissal of that cause of action. Defendant also
contends that to the extent that claimant may be asserting a cause of action for
failure to diagnose and treat his illness, the continuous treatment doctrine
does not apply, and both the notice of intention and claim are untimely.
Further, defendant contends that the claim does not satisfy the strict pleading
requirements of Court of Claims Act § 11 (b), and therefore fails to state
a cause of action.
Conversely, claimant argues that his protection under both the Eighth and
Eleventh Amendments of the United States Constitution was violated, and that he
should be compensated.
As defendant correctly notes, the Court of Claims does not have jurisdiction to
consider a cause of action alleging a violation of the Federal Constitution
(see Brown v State of New York, 89 NY2d 172, 184 ; see also
Tooks v State of New York, Ct Cl, Jan. 10, 2006, Sise, P.J., Claim No.
106164, Motion No. M-69401 [UID # 2006-028-500], affd 40 AD3d 1347
9 NY3d 814 ). Accordingly, that cause of action is hereby
Claimant alleges that he has been suffering from a cough and has had difficulty
breathing since June 24, 2004, when he first complained to medical staff at
Woodbourne, and that defendant has failed to promptly and properly diagnose and
treat these symptoms. Claimant also alleges that 7 NYCRR 250.2 (a), (c-e);
701-702, and DOCS Employees’ Manual sections 2.1, 2.2, 3.4 - 8.1 were
“maliciously and intentional [sic] Violated” (Verified Claim, ¶
In an action to recover damages for personal injuries caused by the negligence
or unintentional tort of an officer or employee of the State, such as a cause of
action for medical malpractice, 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 upon the
Attorney General within 90 days after the accrual of such claim (Court of Claims
Act § 10 ). Further, in a claim to recover for damages caused by the
intentional conduct of an officer or employee of the State, a claim must be
filed and served, or a notice of intention served within 90 days as well (Court
of Claims Act § 10 [3-b]).
Claimant’s cause of action for medical negligence or malpractice accrued
on June 24, 2004, when claimant first complained of coughing and stated that he
was having difficulty breathing. In order for this action to be timely,
claimant was required to either serve a notice of intention to file the claim,
or to file and serve the claim by September 22, 2004. By his own admission, the
notice of intention was not served until February 16, 2005 (Verified Claim,
Further, the claim herein was
filed with the Clerk of the Court on March 16, 2005, and served upon the
Attorney General on March 14, 2005 (Affirmation of James E. Shoemaker,
Assistant Attorney General [AAG], Exhibit B), both clearly more than 90 days
after its accrual.
Claimant is also apparently alleging that he sustained injury to his liver as a
result of his treatment for Hepatitis C.
the extent that claimant may be asserting a cause of action for lack of informed
consent by alleging that he is suffering an undisclosed side effect from the
treatment, the claim would have accrued at the time of his initial treatment.
Based upon a Request and Report of Consultation issued by Woodbourne Facility
physician M. Makram on October 19, 2004 – which was attached to the claim
filed with the Clerk of the Court – the treatment began on April 9, 2004.
A cause of action for lack of informed consent would also be subject to the
90-day limitations period of Court of Claims Act § 10 (3). The claim would
clearly be untimely with respect to this cause of action as well.
Claimant’s failure to timely serve a notice of intention, or to timely
file and serve this claim, deprives the Court of subject matter jurisdiction
(see Lichtenstein v State of New York,
93 NY2d 911, 913 ; Tooks v State of New York, 40 AD3d 1347 ,
lv denied 9 NY3d 814 ). Accordingly, defendant’s motion is
granted and Claim No. 110642 is dismissed.