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Lindsay v. State

New York State Court of Claims
Mar 30, 2015
# 2015-048-171 (N.Y. Ct. Cl. Mar. 30, 2015)

Opinion

# 2015-048-171 Claim No. None Motion No. M-85520

03-30-2015

ANDREW LINDSAY v. THE STATE OF NEW YORK

ANDREW LINDSAY, Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Belinda A. Wagner, Esq. Assistant Attorney General


Synopsis

The Court denied Claimant's motion seeking late Claim relief, finding that the causes of action were untimely.

Case information


UID:

2015-048-171

Claimant(s):

ANDREW LINDSAY

Claimant short name:

LINDSAY

Footnote (claimant name) :

Defendant(s):

THE STATE OF NEW YORK

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

None

Motion number(s):

M-85520

Cross-motion number(s):

Judge:

GLEN T. BRUENING

Claimant's attorney:

ANDREW LINDSAY, Pro Se

Defendant's attorney:

HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Belinda A. Wagner, Esq. Assistant Attorney General

Third-party defendant's attorney:

Signature date:

March 30, 2015

City:

Albany

Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

On August 18, 2014, Andrew Lindsay filed a motion for late Claim relief pursuant to Court of Claims Act § 10 (6) to pursue damages for personal injuries sustained while he was an inmate at Eastern Correctional Facility. Specifically, Claimant alleges Defendant's medical negligence and/or malpractice in failing to timely and property treat him for asthma attacks suffered on January 10, 2011 and January 11, 2011, which resulted in, among other things, Claimant's hospitalization until January 28, 2011. Claimant also asserts Constitutional violations and that he was unnecessarily restrained during his hospital treatment until his discharge. Defendant opposes Claimant's motion.

Court of Claims Act § 11 (a) (i) mandates that a copy of the Claim be served personally or by certified mail, return receipt requested, upon the Attorney General within the applicable time period provided in Section 10 of the Court of Claims Act. As is relevant to this action, Court of Claims Act § 10 (3) mandates that

[a] claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim.

Court of Claims Act § 10 (3-b) mandates that

[a] claim to recover damages for injuries to property or for personal injuries caused by the intentional tort of an officer or employee of the state while acting as such officer or employee . . . shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within one year after the accrual of such claim.

Failure to comply with these statutory filing and service requirements "deprives the Court of Claims of subject matter jurisdiction and compels dismissal of the claim" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]).

In this matter, Claimant served a Notice of Intention to File a Claim on the Attorney General's Office on April 4, 2011 alleging Defendant's medical malpractice and negligence occurring on January 11, 2011 (see Affirmation of Belinda A. Wagner, dated September 3, 2014, Exhibit A). Thus, Claimant had until January 11, 2013 to file and serve his Claim seeking damages for those causes of action.

However, if, as is the case in the instant matter, a claimant fails to timely file or serve the Claim, or fails to timely serve the Notice of Intention, he or she may move the Court for permission to file and serve a late Claim, so long as the applicable statute of limitations set forth in article 2 of the CPLR has not expired (see Court of Claims Act § 10 [6]).

To the extent that the proposed Claim is read to assert causes of action for intentional torts, including the excessive use of force, such claims are subject to a one-year statute of limitations (see CPLR § 215 [3]). The proposed Claim also asserts causes of action for medical malpractice and negligence, which are subject to two-year and six month, and three-year statutes of limitations, respectively (see CPLR 214-a; CPLR 214 [5]). Claims alleging constitutional torts are also governed by the three-year statute of limitations (see Brown v State of New York, 250 AD2d 314, 318 [3d Dept 1998]).

Claimant's most recent allegation of an intentional tort accrued on January 28, 2011, the last date during which he was hospitalized and subjected to physical restraints. Thus, the statute of limitations for the most recent intentional tort expired on January 30, 2012 (see General Construction Law § 25-a [1]), and the Court lacks the discretion to grant late Claim relief for Claimant's allegations of intentional torts. Likewise, Claimant's most recent allegation of medical malpractice, negligence, or the violation of a constitutional tort also accrued on January 28, 2011, at the latest. Thus, the statute of limitations for a cause of action alleging medical malpractice expired on July 29, 2013 (see General Construction Law § 25-a [1]), and the statute of limitations for both the negligence and constitutional tort causes of action expired January 28, 2014. Accordingly, the Court lacks the discretion to grant late claim relief with respect to these remaining causes of action.

Based upon the foregoing, Claimant's Motion No. M-85520 is denied.

March 30, 2015

Albany, New York

GLEN T. BRUENING

Judge of the Court of Claims

The following papers were read and considered by the Court:

Notice of Motion, filed August 18, 2014, with Affidavit of Service, sworn to on July 28, 2014;

Proposed Claim, with Exhibits A-N;

Affirmation of Belinda A. Wagner, Esq., dated September 3, 2014, with Exhibit A-B;

Notice of Motion, filed November 10, 2014;

Affidavit of Andrew Lindsay, sworn to on October 27, 2014, with Exhibits 1-20;

Claimant's Affirmation in Opposition, filed November 10, 2014, with Exhibits A-C;

Affirmation of Belinda A. Wagner, Esq., dated December 30, 2014;


Summaries of

Lindsay v. State

New York State Court of Claims
Mar 30, 2015
# 2015-048-171 (N.Y. Ct. Cl. Mar. 30, 2015)
Case details for

Lindsay v. State

Case Details

Full title:ANDREW LINDSAY v. THE STATE OF NEW YORK

Court:New York State Court of Claims

Date published: Mar 30, 2015

Citations

# 2015-048-171 (N.Y. Ct. Cl. Mar. 30, 2015)