Matter of Jones v Fischer

Annotate this Case

Download PDF

Matter of Jones v Fischer 2013 NY Slip Op 31762(U) June 3, 2013 Supreme Court, Albany County Docket Number: 6684-12 Judge: George B. Ceresia Jr Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY In The Matter of VERNON A. JONES, Petitioner, -against- BRIAN FISCHER COMMISSIONER OF THE STATE OF NEW YORK,DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, DR. DAVID KARANDY, FACILITY HEALTH SERVICES DIRECTOR, GREAT MEADOW CORRECTIONAL FACILITY; MARY ¬ ¬ARRIS, RN, NURSE ADMINISTRATOR, GREAT MEADOW CORRECTIONAL FACILITY, Respondent, For A Judgment Pursuant to Article 78 of the Civil Practice Law and Rules. Supreme Court Albany County Article 78 Tern Hon. George B. Ceresia, Jr., Supreme Court Justice Presiding RJI No. 01-13-ST4357 Index No. 6684-12 Appearmces : Vernon A. Jones I L U I M ~ 06-A-0604 NO. Petitioner, Pro Se Great Meadow CorrectionalFacility 11739 State Route 22 PO Box 5 1 C O ~ S ~NYC12821-005 1 O ~, Eric T. Schneiderman Attorney General State of New York Attorney For Respondent The Capitol Albany, New York 12224 (Keith A. Muse, Assistant Attorney General of Counsel) [* 2] DECISIONIORDER George B. Ceresia, Jr., Justice The petitioner, an inmate at Great Meadow Correctional Facility, has commenced the instant CPLR Article 78 proceeding to review an adverse grievance determinationconcerning follow-up medical treatment with respect to knee replacement surgery. The respondents have made a motion pursuant to CPLR 321 I (a) (8) to dismiss the petition on grounds that petitioner failed to timely serve the order to show cause and petition. The order to show cause, dated December 21, 2012, required the petitioner to serve the respondents and the Attorney General with a copy of the order to show cause and petition on or before January 25,2013. The respondents have submitted the affidavit of Patricia E. Dallmann-Weaver, employed by the New York State Department of Corrections and Community Supervision ( DOCCS ) in the Counsel s Office as a Administrative Assistant. Ms. Dallmann-Weaver n indicates that whenever papers are served upon Commissioner Brian Fischer s Office or DOCCS the papers are forwarded to designated staff after review by her supervisor, Acting Deputy Counsel Nancy J. Heywood. It is the responsibility of appropriate s t a f f to forward these documents to the Office of the Attorney General, along with a letter requesting represehtation on behalf of the respondents. Ms. Dalhann-Weaver indicates that she made a search of the files in the Counsel s Office to determine whether any legal papers relating to the above-captioned action had been served upon the respondents. 2 She indicates that her [* 3] office received an order to show cause, petition and supportingpapers on February 12,20 13. Respondents havealso submittedtheaffidavit ofEvan Sckanz, employed in the Ofice of the New York State Attorney General in the Albany Litigation Bureau as a Clerk. His responsibilities include making entries in, and searching, the database of cases maintained i the office of the Attorney General. Mr. Schanz indicates that he searched the n computerized database of the Attorney General for information concerning the above- captioned action. He found that the Attorney General was served with a copy of the order to show cause, petition and supporting papers on February 12,2013. Mr. Schanz further indicates that ox1 February 22,20 13, the ofice of the Attorney General received fwo letters requestingrepresentation fiom respondents Dr. Kaandy and Mary Harris, RN. These letters indicated that each respondent was served with the order to show cause and petition on February 12,2013. The affidavits of service submitted by the petitioner indicate that he served the order toshow cause,petitionandsupgortingpapm onFebruary7,2013, afierthe January25,2013 deadline. The petitioner indicates that he suffers from a vaxiety of physical and mental disabilities which impaired his ability to follow the service requirements set forth i the order n to show cause. He indicates that he did not receive a repXacement custom fitted orthosis knee brace ranti1 February 20,20 13. Prior to that time, he could not walk without pain, including walking to the prison law library. In addition to the foregoing, he wears two hearing aids to 3 . [* 4] address his hearing impairment. He asserts that Great Meadow Correctional Facility, where he is currently incarcerated,does not have Law Library Stafftrained to assistant inmates with hearing impairments, and that this makes utilization of library skmicesmore time consuming. Lastly, the petitioner indicates that he is receiving treatment for schizophrenia. He avers that the medication which he receives dairy for this condition prevents him fkom being able to comprehend legal material until the following morning. Under the unique circumstances present here, and mindful that service of the papers was ody thirteen days late, for goodcause shown and i the interest of justice, the Court n finds pursuant to CPLR 306-b that an extension should be granted to and including February 7, 2013 for service of the order to show cause, petition and supporting papers. For this reason, the motion will be denied, and the Court will direct the respondent to serve an answer. Accordingly, it is ORDERED, that the petitioner is granted an extension for service of the order to show cause, petition, and supporting papers, nmc pro tunc, to and including February 7 , 2013; and it is further ORDERED, that respondents motion to dismiss the petition be md hereby is denied; and it is further ORDERED, respondents be and hereby are directed to serve and file an answer that within twenty (20) days of the date hereof; and it is further 4 [* 5] ORDERED,that the respondents re-notice the proceeding in conformity with CPLR 7804 (f); and it is further ORDERED, that the proceeding be referred to the undersigned for disposition. This shalI constitute the decision and order of the Court. The Court wilI retain the papers until find disposition of the proceeding. I ENTER Dated: June 3 ,2013 --4 Supreme Court Justice I' Troy, New York George B. Ceresia, Jr. Papers Considered: 1. 2 . 3. Order To Show Cause dated December 2 1,20 12, Petition, Supporting Papers and Exhibits Notice of Motion dated February 25,2013 Reply to Notice of Motion dated March 5,2013 5

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.