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Gizewski v. State

New York State Court of Claims
Jan 6, 2015
# 2015-009-001 (N.Y. Ct. Cl. Jan. 6, 2015)

Opinion

# 2015-009-001 Claim No. 124579 Motion No. M-85388

01-06-2015

MARK GIZEWSKI v. THE STATE OF NEW YORK

CHERUNDOLO LAW FIRM, PLLC BY: John C. Cherundolo, Esq., Of Counsel. HON. ERIC T. SCHNEIDERMAN Attorney General BY: Edward F. McArdle, Esq., Assistant Attorney General, Of Counsel.


Synopsis

Defendant's motion to dismiss the claim was granted, only to the extent that any cuase of action asserting a violation of Federal Constitutional rights was dismissed.

Case information

UID:

2015-009-001

Claimant(s):

MARK GIZEWSKI

Claimant short name:

GIZEWSKI

Footnote (claimant name) :

Defendant(s):

THE STATE OF NEW YORK

Footnote (defendant name) :

The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

124579

Motion number(s):

M-85388

Cross-motion number(s):

Judge:

NICHOLAS V. MIDEY JR.

Claimant's attorney:

CHERUNDOLO LAW FIRM, PLLC BY: John C. Cherundolo, Esq., Of Counsel.

Defendant's attorney:

HON. ERIC T. SCHNEIDERMAN Attorney General BY: Edward F. McArdle, Esq., Assistant Attorney General, Of Counsel.

Third-party defendant's attorney:

Signature date:

January 6, 2015

City:

Syracuse

Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant has brought this motion seeking an order dismissing the claim.

The following papers were considered by the Court in connection with this motion:

Notice of Motion; Attorney Affirmation, with Exhibits 1, 2

Attorney's Affidavit, with Exhibits; Memorandum of Law (In Opposition) 3, 4

Attorney Reply Affirmation 5

In his claim, filed with the Clerk of the Court of Claims on June 26, 2014, claimant, who is confined to a wheelchair, alleges that on January 5, 2014, a correction officer at Five Points Correctional Facility assaulted him by throwing him out of his wheelchair, stomping on his chest, and fracturing his left arm and elbow. He further alleges that food was withheld, and that he was denied timely medical treatment for the injuries suffered by him in this assault, and that once he received medical treatment, he was denied medications which had been prescribed for him. He also alleges that sometime between January 5, 2014 and February 1, 2014, an unknown State employee improperly and unlawfully disclosed confidential medical information to a reporter, without claimant's consent.

As set forth in defendant's moving papers, prior to the institution of this claim claimant had already commenced an action based on this same incident, seeking similar relief, in the United States District Court, Northern District of New York (Exhibit B to Items 1, 2).

Defendant now moves to dismiss this claim on several grounds. Defendant contends that the entire claim should be dismissed as there is another action pending based upon the same cause of action and same underlying factual basis in Federal District Court. Defendant further contends that the claim alleges a Federal constitutional violation over which this Court does not have jurisdiction, and that this Court does not have jurisdiction over the individually named defendants in this claim other than the State of New York. Defendant further contends that the cause of action alleging a violation of Health Insurance Portability and Accountability Act (HIPAA) fails to satisfy the pleading requirements of Court of Claims Act § 11 (b).

Subsequently, as set forth in this Decision and Order, the caption of this claim has been amended to reflect the fact that the State of New York is the only defendant over which this Court has jurisdiction.

It is well-settled that the Court of Claims has no jurisdiction to hear and determine civil actions alleging Federal constitutional violations, since the State is not a "person" within the meaning of 42 USC § 1983 (Will v Michigan Dept. of State Police, 491 US 58; Brown v State of New York, 89 NY2d 172, 184-186 [1996]). As a result, to the extent that this claim seeks damages based upon alleged violations of Federal constitutional rights, such causes of action must be and hereby are dismissed. In this regard, the Court notes that claimant has withdrawn "any claim of deliberate indifference" set forth in the claim (claimant's Memorandum of Law [Item No. 4], pages 4-5).

Additionally, it is equally well-settled that the Court of Claims only has jurisdiction over the State of New York, and does not have jurisdiction over any individually named employee, department, or agency. Therefore, any cause of action asserted against the New York State Department of Corrections, individual correction officers named "John Doe (1-5)" and Five Points Correctional Facility are hereby dismissed.

The Court of Claims does have jurisdiction over certain public authorities that can be sued in their own name, none of which are relevant herein.

Pursuant to Chapter 62, Part C of the Laws of 2011, the Department of Correctional Services and the Division of Parole have been merged into a new agency, now known as the Department of Corrections and Community Supervision.

Claimant acknowledges that this Court does not have jurisdiction over individually named correction officers, and has withdrawn any claims against them.

Defendant contends that the entire claim should be dismissed pursuant to CPLR 3211 (a) (4), contending that there is another action pending between the same parties for the same cause of action, and making specific reference to the complaint filed by claimant in the United States District Court, Northern District of New York (Exhibit B to Items 1, 2). As determined above, however, defendant cannot establish that this claim and the complaint brought in Federal District Court involve "the same parties" since (as determined herein) the instant Court of Claims action is limited to the State of New York, which has not been named as a party in the federal action. Furthermore, the federal action alleges causes of action against individually named correction officers and treating physicians at Five Points Correctional Facility.

Furthermore, claimant's action in federal court is based upon allegations of cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution, as well as violations of the Americans with Disabilities Act of 1990, 42 USC § 12132. As determined above, this Court has dismissed any and all causes of action based upon violations of the United States Constitution, and claimant has withdrawn any causes of action based upon "deliberate indifference" in providing medical treatment to him.

Additionally, the Court has reviewed the instant claim (claim No. 124579) and finds that claimant has adequately set forth causes of action based upon assault and battery, and further has asserted causes of action based upon a denial of timely medical treatment, including a denial in administering prescribed medications.

Finally, the Court also finds that the cause of action based upon an alleged violation of confidentiality laws and HIPAA, although limited in detail, satisfies the requirements of Court of Claims Act § 11 (b). The Court finds that this cause of action sets forth sufficient information to enable the State to conduct a prompt investigation and ascertain its liability under the circumstances (Heisler v State of New York, 78 AD2d767 [4th Dept 1980]); Lepkowski v State of New York, 1 NY3d 201 [2003]).

Based upon the foregoing, therefore, it is

ORDERED, that motion No. M-85388 is GRANTED, in part, to the extent that any cause of action asserting a violation of Federal Constitutional rights, including "deliberate indifference" to claimant's medical needs, is hereby DISMISSED, as well any other cause of action asserted against an individually named defendant other than the State of New York; and it is further ORDERED, that in all other aspects, the motion is DENIED.

January 6, 2015

Syracuse, New York

NICHOLAS V. MIDEY JR.

Judge of the Court of Claims


Summaries of

Gizewski v. State

New York State Court of Claims
Jan 6, 2015
# 2015-009-001 (N.Y. Ct. Cl. Jan. 6, 2015)
Case details for

Gizewski v. State

Case Details

Full title:MARK GIZEWSKI v. THE STATE OF NEW YORK

Court:New York State Court of Claims

Date published: Jan 6, 2015

Citations

# 2015-009-001 (N.Y. Ct. Cl. Jan. 6, 2015)