Opinion
# 2021-032-029 Claim No. 135383 Motion No. M-96142 Motion No. M-96188
04-07-2021
DEANDRE WILLIAMS v. STATE OF NEW YORK
Deandre Williams, Pro Se Hon. Letitia James, Attorney General By: Ray A. Kyles, AAG
Synopsis
Motion to dismiss granted, claim not timely filed and served. Motion for assignment of counsel and poor person relief is denied.
Case information
| UID: | 2021-032-029 |
| Claimant(s): | DEANDRE WILLIAMS |
| Claimant short name: | WILLIAMS |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 135383 |
| Motion number(s): | M-96142, M-96188 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Deandre Williams, Pro Se |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Ray A. Kyles, AAG |
| Third-party defendant's attorney: | |
| Signature date: | April 7, 2021 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, filed the instant claim with the Clerk of the Court on September 23, 2020 seeking damages for injuries sustained as the result of cataract surgery performed on claimant on January 5, 2016. The claim was not served upon the Attorney General until September 30, 2020 (Affirmation of Ray A. Kyles, AAG, Exhibit A). Defendant now moves to dismiss the claim on the ground that the claim was not filed within 90 days of the accrual date as required by Court of Claims Act § 10 (3). Claimant also moves for the assignment of counsel and for poor person relief.
As relevant here, "[a] claimant seeking to recover damages for personal injuries caused by the negligence, intentional tort or unintentional tort of an officer or employee of the State must file and serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept. 2011]; see Court of Claims Act § 10 [3], [3-b]). Here, claimant seeks damages for injuries sustained on January 5, 2016. Therefore, claimant was required to serve a notice of intention to file a claim or file and serve the claim no later than April 4, 2016. Claimant did not file the claim until September 23, 2020 and served the Attorney General on September 30, 2020 (Affirmation of Ray A. Kyles, AAG, Exhibit A). Therefore, the claim is untimely and must be dismissed.
Claimant attempts to invoke the continuous treatment doctrine by stating in the claim that the accrual date is "ongoing" (Verified Claim ¶ 3). Claimant explains that his cataract surgery was performed on January 5, 2016 at Five Points Correctional Facility (FPCF) (Verified Claim, Exhibit 1). Thereafter, he was transferred to Upstate Correctional Facility (Upstate C.F.) on an unspecified date, which ended claimant's cause of action premised on medical care he received at FPCF (see Castollanos v State of New York, 13 Misc 3d 1234 [A], 2006 WL 3258574, at *3 [Ct Cl, Scuccimarra, J., Oct. 17, 2006]). Assuming that claimant received continuous treatment at FPCF, the date on which claimant was transferred out of FPCF is the accrual date of the claim (Ashley v State of New York, UID No. 2018-032-095 [Ct Cl, Hard, J., Dec. 31, 2018]). Because claimant has not provided the date that he was transferred to Upstate C.F., the Court cannot determine when his treatment at Upstate C.F. ended. Therefore, insofar as claimant seeks to avail himself of the continuous treatment doctrine, the claim fails to comply with Court of Claims Act § 11 (b), which requires that a claim state the time when the claim arose.
Moreover, claimant alleges that, following his surgery at FPCF, doctors at other correctional facilities failed to diagnose and treat his worsening cataract. A failure to treat an ailment cannot constitute continuous treatment (Toxey v State of New York, 279 AD2d 927 [3d Dept. 2001]).
The Court will next address claimant's motion for poor person relief and for the assignment of counsel. The assignment of counsel in civil matters is discretionary and is generally denied except in cases involving grievous forfeiture or loss of a fundamental right (see Matter of Smiley, 36 NY2d 433 [1975]; Wills v City of Troy, 258 AD2d 849 [3d Dept. 1999], lv denied 93 NY2d 1000 [1999]). The decision of whether to assign counsel in a particular claim lies in the sounds discretion of the Court (see Matter of Smiley, 36 NY2d at 438; Planck v County of Schenectady, 51 AD3d 1283 [3d Dept. 2008]). The Court has reviewed the claim and finds that claimant is not facing a loss of liberty or grievous forfeiture that would warrant the assignment of counsel (see Morgenthau v Garcia, 148 Misc 2d 900, 903-904 [Sup Ct, New York County 1990]). The claim seeks monetary compensation for allegedly tortious conduct committed by defendant in the past, not conduct that would result in a future loss of liberty or grievous forfeiture. Therefore, claimant's request for the assignment of counsel is denied.
As to claimant's request for poor person relief, the initial filing fee has already been reduced by a Fee Reduction Order issued by Presiding Judge Richard E. Sise. Furthermore, correctional facilities are required to provide limited free postage to inmates (see 7 NYCRR § 721.3 [3]; Randolph v State of New York, UID No. 2014-049-052 [Ct Cl, Weinstein, J., Sept. 19, 2014]; Sosa-Rodriguez v State of New York, UID No. 2013-015-405 [Ct Cl, Collins, J., Feb. 22, 2013]).
Based upon the foregoing, defendant's motion to dismiss claim number 135383 (Motion No. M-96142) is GRANTED and claim number 135383 is DISMISSED. Claimant's motion for the assignment of counsel and for poor person relief (M-96188) is DENIED.
April 7, 2021
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Notice of Motion, dated October 9, 2020, with Attachments. 2. Notice of Motion, dated November 4, 2020; and Affirmation in Support of Motion, affirmed by Ray A. Kyles, AAG on November 4, 2020 with Exhibit A annexed thereto.