MARKOWITZ v. STATE 105735 (2007)

 Claimant, a prison inmate, commenced this action alleging that he was injured as a result of defendant's negligence in confining him in the Special Housing Unit (SHU) without appropriately assessing or treating his mental health needs.   Claimant further alleged that, while in the SHU, his condition deteriorated without proper care and, as a result of that lack of care, he severely injured himself by gouging out his right eye.   We agree with claimant that the Court of Claims erred in granting that part of defendant's cross motion for summary judgment dismissing the psychiatric malpractice claims based on claimant's failure to file and serve the certificate of merit required by CPLR 3012-a, and we therefore modify the order accordingly.   At this stage of the action, the court instead should have directed claimant to file and serve that certificate (see Dye v. Leve, 181 A.D.2d 89, 90, 586 N.Y.S.2d 69;  see also Brath v. Kenmore Mercy Hosp., 198 A.D.2d 771, 605 N.Y.S.2d 1017;  Kolb v. Strogh, 158 A.D.2d 15, 21-22, 558 N.Y.S.2d 549).   We further agree with claimant that the court erred in granting that part of defendant's cross motion for summary judgment dismissing the ordinary negligence claims inasmuch as the notice of intention to file a claim preserved those claims, as distinguished from the psychiatric malpractice claims, and we therefore further modify the order accordingly.   We conclude that claimant's notice of intention to file a claim “set[s] forth the general nature of the claim with sufficient detail to permit [defendant] ․ to investigate the claim and to reasonably infer the basis for its alleged liability” with respect to ordinary negligence (Rhodes v. State of New York, 245 A.D.2d 791, 792, 665 N.Y.S.2d 763;  see Klos v. State of New York, 19 A.D.3d 1173, 796 N.Y.S.2d 267).

 We conclude, however, that the court properly granted that part of defendant's cross motion with respect to the constitutional claim alleging cruel and unusual punishment because there is no language in the notice of intention to file a claim to put defendant on notice of deliberate or intentional acts by its agents (see Estelle v. Gamble, 429 U.S. 97, 104-105, 97 S.Ct. 285, 50 L.Ed.2d 251, reh. denied 429 U.S. 1066, 97 S.Ct. 798, 50 L.Ed.2d 785).   In any event, defendant is not a “person” within the meaning of 42 USC § 1983 and thus is not subject to a claim alleging cruel and unusual punishment in a civil action asserted under that statute based on the deprivation of rights (see Ferrick v. State of New York, 198 A.D.2d 822, 823, 605 N.Y.S.2d 716;  see also Brown v. State of New York, 89 N.Y.2d 172, 185, 652 N.Y.S.2d 223, 674 N.E.2d 1129).   We have examined claimant's remaining contentions and conclude that they are lacking in merit.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying the cross motion for summary judgment in part and reinstating the psychiatric malpractice claims upon condition that claimant shall file and serve a certificate of merit under CPLR 3012-a within 30 days of service of a copy of the order of this Court with notice of entry and reinstating the ordinary negligence claims and as modified the order is affirmed without costs.

MEMORANDUM: