New York State Court of Claims

New York State Court of Claims

WILLIAMS v. THE STATE OF NEW YORK , #2009-015-153, Claim No. 115900, Motion Nos. M-76015, CM-76073


Synopsis


Pro se inmate's motion to dismiss defendant's defenses and for the assignment of counsel was denied except to the extent of dismissing defense alleging lack of jurisdiction for failure to file the claim. Claim was filed.

Case Information

UID:
2009-015-153
Claimant(s):
DEREK WILLIAMS
Claimant short name:
WILLIAMS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115900
Motion number(s):
M-76015
Cross-motion number(s):
CM-76073
Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Derek Williams, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Joan Matalavage, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 24, 2009
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate proceeding pro se, moves to dismiss the defenses asserted in the defendant's answer and for the assignment of counsel. Defendant cross-moves to dismiss the claim to the extent it alleges violations of the Federal Constitution. The claim sets forth causes of action for medical negligence and constitutional violations arising out of the defendant's alleged failure to provide the claimant with previously prescribed prescription medication within 24 hours after his admission to the Special Housing Unit (SHU) at Washington Correctional Facility on January 9, 2008. The cause of action for medical negligence is premised on the requirement set forth in the SHU Rules and Regulations that within 24 hours after admission to SHU the inmate will be provided with authorized prescription medication.

CPLR 3211 (b) permits a party to "move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit." The movant bears the burden of demonstrating that a defense is without merit as a matter of law and any doubt regarding the availability of a defense should be resolved in favor of the party asserting the defense (Butler v Catinella, 58 AD3d 145, 148 [2008]; Santilli v Allstate Ins. Co., 19 AD3d 1031 [2005]).

Defendant raised as its fourth defense in its answer that "this Court lacks subject matter jurisdiction over the claim as it was no[t] filed with the Clerk of the Court of Claims . . . " Claimant contends that he did file his claim and review of the Court's file confirms that the claim was indeed filed. The defendant's fourth defense relating to lack of subject matter jurisdiction based upon the purported failure to file the claim is therefore dismissed.

With respect to the remaining defenses, however, the claimant failed to establish, as was his burden, that the defenses lack merit as a matter of law. Notably, the defendant raised as its third defense "[t]hat this Court lacks personal jurisdiction over the defendant . . . and subject matter jurisdiction over the claim, as the claim was not served in compliance with Section 11 (a) of the Court of Claims Act in that the claim was delivered by ordinary mail instead of served personally or by certified mail, return receipt requested." Claimant contends that this defense lacks merit because he completed the required disbursement form and placed the claim in a large brown envelope and requested that the facility send it to the Attorney General's office by certified mail, return receipt requested. However, no evidence was submitted to substantiate the contention that the claim was sent by certified mail, return receipt requested, or that such a request was even made. At this juncture therefore dismissal of this defense would be inappropriate. Notably, where a notice of intention to file a claim was timely and properly served, as was the case here, service of the claim in the manner set forth in Court of Claims Act § 11(a) may be made within two years after the accrual of the claim (see Court of Claims Act § 10 [3]).[1] As a result, should there be any doubt as to whether the claim was properly served, time remains for the claimant to accomplish service of a claim in the manner authorized by the Court of Claims Act.

That branch of the claimant's motion seeking the assignment of counsel is denied. CPLR 1101 sets forth the procedure for applying for poor person status and CPLR 1102 grants the Court discretion to assign an attorney. In Matter of Smiley (36 NY2d 433 [1975]) the Court of Appeals held that there is no constitutional or statutory requirement that indigents be assigned private counsel in civil litigation. In so holding the Court recognized that unlike a defendant in a criminal proceeding, most civil litigants are not facing a "risk of loss of liberty or grievous forfeiture" (Id. at 437). While the Court in Smiley made clear that civil litigants have no absolute right to assigned counsel, it recognized that "[t]he courts have a broad discretionary power to assign counsel without compensation in a proper case" (Id. at 441; see also CPLR 1102). A "proper case" for the discretionary appointment of counsel has since been interpreted to include situations in which a litigant is faced with a grievous forfeiture or loss of a fundamental right (Wills v City of Troy, 258 AD2d 849 [1999], lv dismissed 93 NY2d 1000 [1999]; Morgenthau v Garcia, 148 Misc 2d 900, 903 [1990]). The Court does not view the allegations made here so compelling as to warrant the assignment of counsel.

Turning to the defendant's cross-motion, the Court agrees that to the extent the claim asserts a cause of action under the Federal Constitution it must be dismissed. It is well settled that the State is not a "person" subject to suit under 42 USC § 1983, the statute governing the assertion of a claim alleging a violation of the Federal Constitution (see, Will v Michigan Dept. of State Police, 491 US 58 [1989]; Brown v State of New York, 89 NY2d 172 [1996]; Welch v State of New York, 286 AD2d 496 [2001]). Because a cause of action under the Federal Constitution may not be brought in the Court of Claims, this cause of action must be dismissed.

Based on the foregoing, claimant's motion to dismiss defendant's defenses asserted in its answer is granted only to the extent of dismissing the defendant's fourth defense in its answer and is otherwise denied. Defendant's cross-motion to dismiss the claim is granted only to the extent of dismissing the cause of action predicated upon a violation of the Federal Constitution and is otherwise denied.



March 24, 2009
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated December 3, 2008;
  2. Unsworn "Affidavit" of Derek Williams dated December 3, 2008 with exhibits;
  3. Claimant's Affidavit of Service sworn to December 24, 2008;
  4. Notice of cross-motion dated January 7, 2009;
  5. Affidavit of Joan Matalavage sworn to January 7, 2009 with exhibits;
  6. Claimant's opposition to defendant's cross- motion dated January 19, 2009.

[1]. In its Decision and Order dated December 4, 2008 the Court determined that claimant's application for late claim relief was unnecessary because the notice of intention to file a claim was timely and properly served.