Opinion
# 2014-028-510 Claim No. 123086 Motion No. M-84501
04-14-2014
DONALD MACK BENNETT v. THE STATE OF NEW YORK
DONALD MACK BENNETT, PRO SE No Appearance HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Gregory P. Miller, Esq. Assistant Attorney General
Synopsis
Defendant's motion to dismiss Claim No. 123086 is granted as the claim was not filed or served within ninety (90) days of accrual of the claim.
Case information
| UID: | 2014-028-510 |
| Claimant(s): | DONALD MACK BENNETT |
| Claimant short name: | BENNETT |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123086 |
| Motion number(s): | M-84501 |
| Cross-motion number(s): | |
| Judge: | RICHARD E. SISE |
| Claimant's attorney: | DONALD MACK BENNETT, PRO SE No Appearance |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Gregory P. Miller, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 14, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following were read and considered with respect to Defendant's motion to dismiss:
1. Notice of motion and Affirmation of Assistant Attorney General Gregory P. Miller with annexed Exhibits A-D.
Filed papers: Claim filed August 15, 2013.
This is a claim brought by a New York State inmate proceeding pro se. At the time the claim was filed, Claimant was incarcerated at the Westchester County Jail. According to the claim, the Defendant was negligent, grossly negligent and deliberately indifferent for failing to treat three fractures in Claimant's left hand and for denying Claimant needed medication. In addition, it is generally alleged in the claim that the Claimant was falsely accused of "an awful act" and that he was the subject of a fabricated and frivolous disciplinary report. The claim allegedly accrued on November 26, 2011 when Claimant was incarcerated at Lakeview Shock Correctional Facility (Lakeview Shock). In lieu of answering, Defendant moves to dismiss the claim. Claimant failed to respond to Defendant's motion.
Pursuant to Court of Claims Act § 11 (b), a claim must state the time when and the place where the claim arose, the nature of the claim, and the items of damages or injuries allegedly sustained. The requirements of section 11 (b) are substantive conditions upon the State's waiver of its sovereign immunity, and the failure to comply with these requirements renders the claim jurisdictionally defective (Kolnacki v State of New York, 8 NY3d 277 [2007]; Lepkowski v State of New York, 1 NY3d 201 [2003]). Defendant argues that Claimant failed to set forth the nature of the claim in a clear and concise manner. While the Court agrees that the nature of the claim could have been stated in a clearer and more definite manner, it cannot conclude that the claim was so insufficient as to prevent the State from investigating its potential liability (see Heisler v State of New York, 78 AD2d 767 [4th Dept 1980]). In fact, Defendant does not even argue that its ability to investigating the claim was impaired by the alleged insufficiency of the claim. Accordingly, Defendant's motion to dismiss the claim for failing to comply with the requirements of Court of Claims Act § 11 (b) is denied.
Defendant further notes that there remains pending a separate claim and an amended claim No. 120627 against the State of New York for the alleged failure of different State employees to treat fractures of the left wrist, for stopping medication and for retaliation (see Defendant's Exhibits B and C). The allegations in claim No. 120627 also accrued at Lakeview Shock and allegedly occurred at approximately the same time as the allegations alleged in the present claim. While the general medical negligence and/or malpractice allegations in claim No. 120627 and in the present claim appear to be the same, both claims are insufficiently specific to assure the Court that these claims contain all of the same causes of action and are identical (see Robinson v State of New York, UID No. 2010-038-580 [Ct Cl, DeBow, J., Dec. 9, 2010]). Pursuant to Court of Claims Act § 10 (3), a claim for personal injuries allegedly caused by the negligence of an employee of the State of New York must be filed and a copy served upon the Attorney General within ninety (90) days after the claim accrued, unless within the same ninety (90) day period, a notice of intention to file a claim is served upon the Attorney General, in which event the claim must be filed and served within two (2) years of accrual of the claim. The service and filing requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Matter of Dreger v New York State Thruway Auth., 177 AD2d 762 [3d Dept 1991], affd 81 NY2d 721 [1992]; Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]). The failure to comply with these requirements mandates dismissal of the claim for lack of subject matter jurisdiction (Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]). Here, claim No. 123086 was filed and served on the Attorney General's Office on August 15, 2013. The causes of action asserted in the claim all allegedly accrued on November 26, 2011, and nothing in the claim indicates that a notice of intention was served upon the Attorney General. Because the claim was not filed and served within ninety (90) days after the claim allegedly accrued, the Court is deprived of subject matter jurisdiction and claim No. 123086 must be dismissed.
Decisions of the Court of Claims may be found on the Court's website at www.courtofclaims.state.ny.us.
Based on the foregoing, claim No. 123086 is dismissed as it was not filed and served within ninety (90) days of accrual of the claim.
April 14, 2014
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims