Barnes v. State, 524541

• Decision Date: 15 February 2018
• Docket Number: 524541
• Parties: In the Matter of Anthony BARNES, Appellant, v. STATE of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

158 A.D.3d 961
72 N.Y.S.3d 603

In the Matter of Anthony BARNES, Appellant,
v.
STATE of New York, Respondent.

524541

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: January 9, 2018
Decided and Entered: February 15, 2018

Anthony Barnes, Marcy, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Robert M. Goldfarb of counsel), for respondent.

Before: Garry, P.J., Clark, Mulvey, Aarons and Pritzker, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

158 A.D.3d 961

Appeal an order of the Court of Claims (Hard, J.), entered October 3, 2016, which denied claimant's application pursuant to Court of Claims Act § 10(6) for permission to file a late notice of claim.

For a period of approximately six weeks beginning on or about January 7, 2015, claimant, an inmate at Upstate Correctional Facility, allegedly experienced sharp pains in his left side and lower abdominal area, which he attributes to a urinary tract infection, and claims that he was denied timely and adequate medical attention by correction officers and medical staff within the facility. In April 2016, claimant sought permission to file a late notice of claim against the State to recover damages for personal injuries caused by the alleged negligence and intentionally tortious conduct of certain facility staff. Finding, among other things, the delay unexcused and the proposed claim lacking in merit, the Court of Claims denied claimant's application to file a late notice of claim, prompting this appeal.

We affirm. As an initial matter, with regard to that portion of claimant's application seeking to bring a late intentional tort claim against certain facility staff (see Court of Claims Act § 10[3–b] ), the application was properly denied to that extent

158 A.D.3d 962

because the one-year limitations period in which to make an application for, and to bring, such a claim had expired (see CPLR 215[3] ; Court of Claims Act § 10[6] ; Sands v. State of New York, 49 A.D.3d 444, 444, 853 N.Y.S.2d 555 [2008]; Salquerro v. State of New York, 212 A.D.2d 827, 828, 622 N.Y.S.2d 147 [1995] ; Mallory v. State of New York, 196 A.D.2d 925, 926, 601 N.Y.S.2d 972 [1993] ; Hernandez v. State of New York, 144 A.D.2d 167, 167, 534 N.Y.S.2d 495 [1988] ; cf. Campos v. State of New York, 139 A.D.3d 1276, 1278, 33 N.Y.S.3d 479 [2016] ; Burks v. State of New York, 119 A.D.3d 1302, 1303, 989 N.Y.S.2d 922 [2014] ).

Turning to the balance of the allegations in claimant's proposed claim, pursuant to the Court of Claims Act, a claim or notice of intention to file a claim to recover damages for personal injuries caused by the negligence of an officer or employee of the State must be filed and served within 90 days after accrual of the cause of action (see Court of Claims Act § 10[3] ; Burks v. State of New York, 119 A.D.3d at 1303, 989 N.Y.S.2d 922; Davis v. State of New York, 89 A.D.3d 1287, 1287–1288, 933 N.Y.S.2d 431 [2011] ). Where, as here, such...