Claim was dismissed as untimely.
|Claimant short name:||WILLIAMS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-78325, M-78951|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Derek Williams, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Joan Matalavage, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 27, 2010|
|See also (multicaptioned case)|
Defendant moves for dismissal of the instant claim pursuant to CPLR 3211 (a) (2), (4), (5), (7) and (8). Claimant moves for the assignment of counsel and poor person status pursuant to CPLR 1101 and 1102.
By Decision and Order filed December 17, 2008 the Court denied claimant's motion for late claim relief as unnecessary, noting that the proper and timely service of a notice of intention to file a claim extended claimant's time to serve and file a claim until two years from the date the claim accrued (Court of Claims Act § 10 ; Williams v State of New York, UID # 2008-015-098, Claim No. none [Ct Cl, December 14, 2008], Collins, J.). Claimant filed two claims, both arising out of the alleged failure of the Department of Correctional Services to provide him certain medications within 24 hours following his admission to the Special Housing Unit (SHU) at Washington Correctional Facility.
Claim Number 115900 alleges the negligent denial of medication between January 9, 2008 and February 2, 2008 (defendant's Exhibit B, ¶ 41). In its answer to that claim the defendant raised improper service of the claim as its third affirmative defense (defendant's Exhibit C). Claimant then moved to dismiss the defenses asserted in the answer and, with respect to the third defense and as relevant here, the Court denied the motion as no evidence had been submitted to substantiate the assertion that the claim had been served in the manner provided by Court of Claims Act § 11 (a). The Court noted, however, that "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" (Williams v State of New York, UID # 2009-015-153, Claim No. 115900 [Ct Cl, March 24, 2009], Collins, J.). While defense counsel avers herein that Claim Number 115900 was improperly served, it has not moved to dismiss the claim on that basis.
The second claim arising out of this incident was filed on April 22, 2010 and assigned Claim Number 118323. It is this claim the defendant seeks to have dismissed on the grounds that it arises out of the same incident as the previously filed claim and, further, that it is time-barred because the claim was served more than two years after the date it accrued. Defendant also asserts that the instant claim was served by certified mail, return receipt requested, as required by Court of Claims Act § 11 (a) (i) but was late.
Court of Claims Act § 10 (3) requires that where a notice of intention to file a claim has been timely served, as appears to be the case here(1) , a claim for an unintentional tort must be filed and served within two years following accrual. Despite several typographical errors relating to the year of accrual, Claim Number 118323 is clearly based on the same facts as the previously filed claim, both of which allege a failure to provide claimant previously prescribed medication between January 9, 2008 and February 2, 2008 (defendant's Exhibit A, ¶ 15; Exhibit B ¶ 40). The instant claim, having been filed on April 22, 2010 and served on April 14, 2010, is therefore time-barred.
Inasmuch as defendant established that the instant claim was untimely filed and served, defendant's motion (Motion No. M-78325) is granted and Claim Number 118323 is dismissed. In light of this determination, claimant's motion for the assignment of counsel and poor person status is denied (Motion No. M-78951).
October 27, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
Motion No. M-78325
Motion No. M-78951
1. Defense counsel's contention that the notice of intention was served in relation to the first claim but not the second is rejected in light of her assertion that both claims arise out of the same incident.