Blaylock v State of New York

[*1] Blaylock v State of New York 2006 NY Slip Op 51909(U) [13 Misc 3d 1219(A)] Decided on August 15, 2006 Ct Cl Schweitzer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 15, 2006
Ct Cl

Michael Blaylock, Claimant,

against

The State of New York, Defendant.



112274



For Claimant:

MICHAEL BLAYLOCK, pro se

For Defendant:

ELIOT SPITZER, ATTORNEY GENERAL

By: Mary B. Kavaney, Assistant Attorney General

Melvin L. Schweitzer, J.

This is defendant's motion to dismiss the claim, in part, for lack of jurisdiction. Claimant, currently an inmate in Arthur Kill Correctional Facility, alleges that he was assaulted by two other inmates at Fishkill Correctional Facility on February 4, 2005 as the result of defendant's negligence; that he received inadequate medical care for the injuries sustained in the assault; and that he was wrongfully charged with misconduct in connection with the subject incident. [FN1]

Claimant served a notice of intention to file a claim on March 21, 2005, within 90 days of the incident, and the claim was served on April 13, 2006 and filed on April 28, 2006. The basis of defendant's motion is that the allegations of the claim go way beyond those of the notice of intention. While the claim articulates three separate bases for liability negligence leading to claimant's assault, medical malpractice and wrongful institution of disciplinary proceedings the notice of intention referenced only the first of these theories and contained no mention of claimant's medical care or the disciplinary proceedings instituted against him.

Court of Claims Act §10[3] requires a claimant seeking damages for personal injury to either serve and file a claim within 90 days of the claim's accrual, or serve a notice of intention within 90 days followed by service and filing of a claim within an extended period, two years for negligence claims or one year for intentional tort claims. The purpose of the requirements of §10 is to provide the State with prompt notice of the nature of a claimant's allegations so that it may [*2]investigate those allegations and evaluate its potential liability (Lepkowski v State of New York, 1 NY3d 201; Heisler v State of New York, 78 AD2d 767 [4th Dept 1980]; Hamilton v State of New York, 11 Misc 3d 650 [2006]). Thus, when a notice of intention is followed by a claim that expands on the allegations of the notice of intention, the question is whether the notice of intention gave defendant notice of what claimant alleges in the claim (see, e.g., Legall v State of New York, 10 Misc 3d 800).

Here, there is no question that the notice of intention provided adequate notice of claimant's intent to prove that defendant's allegedly inadequate supervision led to him being assaulted, and defendant does not argue otherwise. Nevertheless, since the notice of intention contained no mention of claimant's medical care, or of defendant's allegedly wrongful institution of disciplinary proceedings, it did not serve to extend the statutory filing period for those causes of action and, since the claim itself was interposed more than 90 days following accrual, those causes of action are untimely and the court lacks jurisdiction over them.

Accordingly, the motion to dismiss for lack of jurisdiction is granted to the extent that paragraphs 5, 6 and 7 of the claim, and the reference in paragraph 3 to the failure to provide claimant with reasonable and adequate medical care, are stricken from the claim.

New York, New York

August 15, 2006

MELVIN L. SCHWEITZER

Judge of the Court of Claims Footnotes

Footnote 1:The court considered the Notice of Motion, Affirmation and Exhibits and claimant's Affidavit in Opposition.