Opinion
Claim No. 136243
10-01-2021
In the Matter of the Application of Hailan CUI, Administrator for the Estate of Yanfang Xie, deceased, Claimant, v. STATE of New York, Defendant.
Before me in this case is a motion by the administrator of the Estate of decedent Yanfang Xie to file a late claim or notice of intention. The case has a somewhat complicated procedural history, which it is necessary to recount before considering the specifics of the application.
The proceedings relating to this case began when a notice of intention was served on July 16, 2019 on behalf of "HAILAN CUI, as Proposed Administrator of the Estate of YANFANG XIE, Deceased," and naming the State of New York as defendant. The notice stated that the claim "arose during the course of claimant's admission at Manhattan Psychiatric Center ("MPC or the "Center"), located at the Ward's Island Complex in 2019 whereupon in April 2019 decedent was improperly caused and allowed to leave and/or elope from the facility and was thereafter found dead in the East River on April 17, 2019" (Affidavit in Opposition of Assistant Attorney General Cheryl M. Rameau, Esq., dated August 13, 2021 ["Def Aff"], Ex A ["NOI"]). A claim was then filed on April 14, 2021, and served on April 19, again listing as claimant Hailan Cui as "Administrator of the Estate of (Pending) Yanfang Xie, decedent," and naming as defendants the New York State Office of Mental Health ("OMH") and various affiliated entities, including then Governor Andrew Cuomo and various John and Jane Does. Individuals are not proper defendants in the Court of Claims, and agencies are merely arms of the State of New York. Thus, the caption has been amended accordingly (see supra n 1), and this opinion will refer to defendant (singular) and "the State" as the parties named by claimant.
The papers before me also refer to "petitioner," although the proper labels for Cui, used interchangeably below, are either "movant" (in regard to the late claim motion) or "claimant" (in regard to the filed claim).
The claim, verified by the proposed administratrix, alleged that on April 17, 2019 decedent Xie was found floating in the Hudson River, after having been sent back from her day program at MPC on March 25, 2019 without adequate supervision or assistance. As a result, claimant alleges, Xie wandered off the premises, and ultimately died as a result of defendant's negligence.
The State filed a Verified Answer on June 1, 2021, which included as its Sixth Affirmative Defense: "The named claimant lacks the legal standing to sue, and therefore, there is no proper claim over which the Court has jurisdiction." The following day, by letter to the parties, I stated the following:
"It appears from a review of the claim in this case that claimant is the proposed administratrix of the decedent's estate. If that is the case, it would appear that the Court lacks jurisdiction over this suit, since an administratrix must be formally appointed before commencing suit against the State (see Lichtenstein v State , 93 NY2d 911, 913 [1999] ; Kiesow v State of New York , 161 AD3d 1060, 1061 [2d Dept 2018] ). The issue is raised in defendant's Verified Answer as its Sixth Affirmative Defense, and the Court has discretion to assert it as well (see Erie Blvd. Hydropower, LP v State of New York , 90 AD3d 2393, 2394 [3d Dept 2011] [jurisdictional defect may be raised sua sponte])."
I directed that claimant make such submission as it deemed appropriate on the question of whether the claim should be dismissed.
By letter dated July 16, claimant informed the Court that the previous day Hailan Cui had received Limited Letters of Administration from the New York County Surrogate. The letter asked that I "accept the appointment of Hailan Cui as administrator for the Estate, and to allow this matter to move forward."
Following a conference with the Court on July 22, 2021, the Court set forth a schedule for claimant to make a late claim motion. On July 30, claimant filed the motion now before me.
The motion is supported by the affirmation of counsel, the affidavit of petitioner, and various documents. In the affirmation, counsel (who does not claim to have personal knowledge of the facts alleged), sets forth the following account: In March 2015, Xie was a 51-year-old woman who for several months had resided at MPC, a New York State facility (Affirmation in Support of Jesse J. Weiner, Esq., dated July 30, 2021 ["Weiner Aff"] ¶¶ 3-4). On March 25, 2019, petitioner Cui, the decedent's niece, visited Xie for the final time (id. ¶ 4; Affidavit of Hailan Cui, dated July 29, 2021 ["Cui Aff"] ¶¶ 2, 9). Cui was Xie's only living relative in the United States (Cui Aff ¶ 7).
The record does not disclose the relationship between the two,
About ten days later, Xie disappeared from the facility, without notice to the family or "proper authorities" (Weiner Aff ¶ 5). Petitioner was notified on April 10 that Xie had been missing since April 4 and that the facility had filed a missing persons report, but no further information was provided (id. ¶ 7;Cui Aff ¶ 10). On April 14, petitioner sought out information from the NYPD, only to learn that no missing person's report had been filed (Weiner Aff ¶ 9; Cui Aff ¶ 12). On April 18, 2019, Cui learned that a body later identified as Xie's had been found in the East River (Weiner Aff ¶ 10; Cui Aff ¶ 13). An autopsy left the cause of death undetermined because decedent had been in the water too long (id. ¶ 12; Cui Aff ¶ 14).
Petitioner argues that it is entitled to late claim relief, on the grounds that the delay is excusable, the action is meritorious, no alternative remedies are available and no prejudice will accrue to the State as a result (id. ¶ 16). Among other things, Cui attributes the delay in bringing the claim to the closing of Surrogate's Court to petitions due to COVID (Cui Aff ¶¶ 19-20).
In the alternative, claimant argues that the limitations period has not yet expired since Court of Claims Act § 10(2) gives her two years from accrual and 90 days from appointment to file a claim, with the former date still not reached due to the Governor's COVID Executive Orders tolling court deadlines, and latter date expiring on October 13, 2021. She asks, then, that any dismissal of this claim be without prejudice, so that she may re-file as the now appointed administratrix.
Defendant opposes the motion by affirmation of counsel. Initially, defendant notes that the claim filed April 14 is a nullity, since a proposed administrator cannot commence an action in this Court (Def Aff ¶ 7). It notes further that a wrongful death claim must be filed within 90 days of the appointment of an administrator, and two years of the accrual date. The 90-day period will not expire until October 15, 2021 and, due to COVID-related executive orders tolling the statute of limitations commencing on March 7, 2020, defendant estimates that the two-year period will not expire until about eight months following April 17, 2021 (Def Aff ¶ 10). Therefore, according to defendant, this motion is unnecessary.
As to the asserted claims other than wrongful death, characterized by defendant as negligent supervision and medical malpractice claims, the State argues that the Notice of Intention was invalid, as it was overly vague and not compliant with Court of Claims Act § 11(b), and the factors to be considered under Court of Claims Act § 10(6) require denial of the late claim motion.
Discussion
I. The Pending Claim
Before addressing the late claim application before me, there is the preliminary matter of the status of the existing claim no. 136243.
There is no dispute, however, that the present claim was filed before the estate's representative was issued Letters of Administration. However, a cause of action on behalf of a decedent "can only be filed by a proper representative of the decedent, ..." ( Smith v State , 41 NY2d 1063, 1065 [1977] ; see also Lichtenstein , 93 NY2d at 913 [In order for a person who intends to represent the estate of a decedent to comply with the filing and service provisions of Court of Claims Act §§ 10(2) and (3), the statute contemplates that such "executor or administrator be formally appointed before commencing an action against the State"]). An administrator or executor "who start[s] her action in the Court of Claims before receiving letters of administration, [does] not meet the requirements of the Court of Claims Act, and thus [has] not properly commence[d] the action" ( Lichtenstein , 93 NY2d at 913 [emphasis added]). By filing the claim prior to receiving the Letters of Administration, "no legally sufficient claim was timely filed", resulting in a jurisdictional defect in the action (id. ); see also Jones v State , 69 AD2d 936, 936 [3d Dept 1979]affd on op below 51 NY2d 943 [1980] [finding that claim filed on behalf of decedent prior to receipt of testamentary letters of appointment was jurisdictionally defective and subject to dismissal). This "same time requirement applies for a claim of conscious pain and suffering" ( Tooks v State of New York , 40 AD3d 1347, 1348 [3d Dept 2007]lv denied 9 NY3d 814 [2007] ). A person who seeks to represent a decedent in a claim who fails "to comply with either the filing or service provisions of the Court of Claims Act results in a lack of subject matter jurisdiction requiring dismissal of the claim" (id. ).
Since there was no valid action, the fact that letters of the administration were later issued has no impact on this claim, since the action was a nullity from the outset (see Dineman v NYS Lottery , 69 AD3d 1145, 1146 [3d Dept 2010] ["jurisdictionally defective claim cannot be cured through an amendment"]). The Court therefore lacks jurisdiction over the pending claim, and it must be dismissed by the Court sua sponte (see Erie Blvd. Hydropower, LP , supra ).
Such a dismissal for lack of jurisdiction, however, is necessarily without prejudice see Joyce M.M. v Robert J.G. , 187 AD3d 1610, 1611 [4th Dept 2020] ["Inasmuch as such a dismissal is not on the merits ... we further conclude that the petition should be dismissed without prejudice"]; Herrmann v Bank of America, N.A. 170 AD3d 1438, 1442 [3d Dept 2019] [dismissal was not a "determination on the merits," and so was without prejudice]). Further, allowing the filing of a new claim is not futile, given that defendant concedes that there is still time left to file the wrongful death action (see Beale v State of New York , UID No. 2015-040-019 [Ct Cl, McCarthy, J., April 27, 2015] [improperly served claim dismissed without prejudice, since properly served Notice of Intention meant "Claimant's time to timely and properly serve and file a Claim as ... has not expired]").
This still leaves the matter of the late claim motion, which breaks down into two distinct questions: First, late claim relief is available to a party that "fails to file or serve upon the attorney general a claim or to serve upon the attorney general a notice of intention, as provided in the foregoing subdivisions, within the time limited therein for filing or serving upon the attorney general the claim or notice of intention" ( Court of Claims Act § 10[6] ). Therefore, the threshold question in this case is whether it can be said at this time claimant has, in fact, failed to serve the attorney general with a valid claim or notice of intention within the statutory period. If she has, then I must consider the late claim application. If she has not, then the application is premature. The issues for this question are distinct for the wrongful death cause of action, and those other causes of action raised by claimant.
This distinction is important, as the nature and recipients of damages are distinct in regard to these two types of claims. As described by the Court of Appeals:
"[A] wrongful death action belongs to the decedent's distributees and is designed to compensate the distributees themselves for their pecuniary losses as a result of the wrongful act. The proceeds are paid directly to the distributees in the proportions directed by the court, determined by their respective monetary injuries. In comparison, a personal injury action on behalf of the deceased ... seeks recovery for the conscious pain and suffering of the deceased and any damages awarded accrue to the estate" (Heslin v County of Greene , 14 NY3d 67, 76-77 [2010] [citations omitted]).
II. Wrongful Death
The deadline for filing a wrongful death claims is set forth in Court of Claims Act § 10(2). That provision states:
"A claim by an executor or administrator of a decedent ... for damages for a wrongful act, neglect or default, on the part of the state by which the decedent's death was caused, shall be filed and served upon the attorney general within ninety days after the appointment of such executor or administrator, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the death of the decedent. In any event such claim shall be filed and served upon the attorney general within two years after the death of the decedent"
As both parties note, the 90 days following appointment of the executor on July 15 has not expired, and while the two years since death has passed, the period was tolled between March 20 and November 3, 2021 by the COVID Executive Orders, so that the time has not lapsed either (see Brash v Richards , 195 AD3d 582 [2d Dept 2021] ).
Moreover, although defendant does not address the issue, a proposed administrator may serve a Notice of Intention, even though he or she may not file a claim (see Tooks v State of New York , 40 AD3d 1347, 1348 [3d Dept 2007] ). Assuming the Notice of Intention met the requirements of section 11(b) — as I find in regard to the negligence cause of action below — this would extend the 90-day filing period to two years following the decedent's death, as extended by the COVID Executive Orders. Given that defendant concedes that the time to file a wrongful death claim has not expired in any case, I need not make a ruling on this question.
In light of the foregoing, claimant has not yet failed to file or serve the claim "within the time limited therein for filing or serving ...," so that relief under section 10(6) is not yet ripe. Moreover, in light of my decision above dismissing the present claim without prejudice, the dismissal of the present claim does not prevent claimant from re-filing a claim now that she has been appointed as the administratrix of the decedent's estate. I therefore deny the motion for a late claim as to the wrongful death claim, as unripe.
III. The Notice of Intention and the claims negligence and medical malpractice
Under Court of Claims Act §§ 10(3), a claimant may file a claim alleging a negligent or unintentional tort within two years, provided that a valid notice of intention is filed within ninety days after the claim accrues. If the underlying notice of intention is invalid, however, the claim is timely only if served within ninety days (see Cendales v State of New York , 2 AD3d 1165 [3d Dept 2003] ). A claimant's failure to "sufficiently particularize" the notice of intention constitutes a non-waivable, jurisdictional defect in an action whose timeliness depends on the validity of that notice ( id. at 1168 ; see also Czynski v State of New York , 53 AD3d 881 [3d Dept 2008], lv denied 11 NY3d 715 [209] [claim correctly dismissed as untimely when notice of intention filed within 90 days found insufficient]; Langner v State of New York , 65 AD3d 780 [3d Dept 2009] [same]).
For purposes of 11(b), a notice of intention must set forth the same kind of information as a claim, except that "the items of damage or injuries and the sum claimed need not be stated" ( Court of Claims Act § 11[b] ). Specifically, the notice of intention must state "the time when and place where such claim arose, [and] the nature of same" (id. ). These requirements are, however, not applied as stringently to a notice of intention as to a claim (see Epps v State of New York , 199 AD2d 914, 914 [3d Dept 1993] ["A notice of intention to file a claim does not serve the same purpose as the claim itself, and for that reason need not meet the more stringent requirements imposed upon the latter"]; Sommer v State of New York , 131 AD3d 757, 758 [3d Dept 2015] ["notices of intention are reviewed less strictly than claims"]; Czynski , 53 AD3d at 883 ["our treatment of the requirements of the notice of intention has historically not been as stringent as that of the claim"]). In particular, the notice need not state all of the elements of a cause of action, so long as it is of "sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances" (Grumet v State of New York , 256 AD2d 441, 441 [2d Dept 1998] citing Heisler v State of New York , 78 AD2d 767, 767 [4th Dept 1980] ; see also Rhodes v State , 245 AD2d 791, 792 [3d Dept 1997] ["All that is required is that the notice of intention set forth the general nature of the claim with sufficient detail to permit the State to investigate"]). Accordingly, if the basis for the State's misconduct can be "reasonably inferred," from the notice, then it meets the requirements of section 11(b) ( Ferrugia v State of New York , 237 AD2d 858, 859 [3d Dept 1997] ). If, on the other hand, the notice does not indicate how claimant was injured and "how [defendant] was negligent," it does not comply with the statute ( Cendales , 2 AD3d at 1167 ).
The material allegations in the Notice of Intention were as follows:
"The claim arose during the course of claimant's admission at Manhattan Psychiatric Center located at the Ward's Island Complex in 2019 whereupon in April 2019 decedent was improperly caused and allowed to leave and/or elope from the facility and was thereafter found dead in the East River on April 17, 2019.
... [T]he respondents, their agents, employees and/or licensees were careless and negligent in their care and treatment of the claimant in that they failed to properly monitor the decedent; failed to provide proper supervision and care to the decedent; failed to make proper precautions so that the decedent could not leave the facility; allowed the decedent to be unsupervised; caused and allowed the decedent to elope; failed to place the patient under close observation; failed to provide adequate safety measures to prevent the decedent from leaving the facility; failed to be aware of the decedent's condition, signs and symptoms; failed to provide skillful, diligent and careful treatment and psychiatric care." (NOI ¶ 3).
Defendant divides the notice into causes of action for "negligent supervision" of claimant and "medical malpractice" (Aff in Opp ¶ 12). Although the document does not use this specific terminology, the allegations can be broken down into those that assert claims that would appear to sound in common law negligence (NOI ¶ 3 ["failed to properly monitor the decedent"]) and others that are better characterized as asserting malpractice (see id. ["failed to be aware of the decedent's condition, signs and symptoms; failed to provide skillful, diligent and careful treatment and psychiatric care"]). The same is true of the claim (compare Claim ¶ 2 [allegations of negligence: "negligently, carelessly and recklessly creating and allowing the aforementioned location/premises to remain in a dangerous and hazardous condition"] with id. ["in failing to render that degree of medical care in conformity with the good and accepted medical practices"]).
Initially, the State argues that the notice of intention is invalid as to both causes of action because it failed to state when they arose (see Def Aff ¶ 18; see also Barnes v State , 164 AD3d 977, 978 [3d Dept 2018] [notice of intention that fails to state when claim arose is invalid]). The notice, however, revealed the specific date on which the decedent was found dead, and the month this occurred. Moreover, the affidavit in support of the motion makes clear that the date of death is simply unknown to anyone (see Cui Aff ¶ 13). Under these circumstances, and given that the key facts central to this case were solely in the possession of defendant, I find this information a sufficient disclosure of the accrual date for purposes of a Notice of Intention (see Gang v State , 177 AD3d 1300, 1303-1304 [4th Dept 2019] [allegation in Notice of Intention that claimant was injured "on or about May 28, 2014" was sufficient for 11(b) purposes to support allegation in claim that injury "occurred commencing on or about May 20, 2014 ... and continued for several days and/or weeks thereafter," since it fell within the "time frame" of the claim, and the requirements of a Notice of Intention are not as stringent as those for a claim]; Epps , 199 AD2d at 914 ["Where ... the alleged negligence was ongoing, and assertedly involved omissions rather than affirmative acts, the recitation in the notice of the range of dates ... is sufficiently specific to permit the State to investigate the claim, for example by reviewing the pertinent records and interviewing the personnel involved"]; Smith v State , 25 Misc 3d 1216[A], at *1-2 [Ct Cl, Dec 22, 2006] [claim stating that "commencing in about 2002 and continuing through 2005", medical malpractice occurred at "Cape Vincent and Arthur Kill Correctional Facilities" was sufficient for purposes of section 11(b)"]).
Further, while defendant contends that the notice does not disclose "how the State played a role in the decedent's elopement" or her death (Aff in Opp ¶ 13), I find that it is sufficient in this regard as to allegations of negligence. As set forth above, the notice alleged that claimant was in a State psychiatric facility; that she was not given adequate supervision there; that the lack of supervision resulted in her leaving; and she was found dead in the river shortly thereafter. I find this sufficient to notify the State, under the looser standard of section 11(b) as applied to notices of intention, of the nature of its negligence and its role in causing Ms. Xie's death (see Ferrugia 237 AD2d at 859 [when it is "apparent from the notice of intention that claimant is alleging that the State negligently allowed a dangerous situation," through the practices noted therein, the requirements of section 11(b) are met]).
This is not to say, of course, that these allegations are sufficient to state a claim. The legal basis under which Ms. Xie was staying in the facility (i.e., whether she was there voluntarily and thus could leave at will) is not disclosed, and may ultimately be relevant to whether the circumstances as described can sustain a cause of action. But the question before me now is whether the NOI meets the attenuated standard applicable to such a notice, and as set forth above, I find that it does.
For these reasons, I find that the notice of intention met the section 11(b) requirements in regard to claimant's negligence claim. As a result, and in light of the executive orders referenced above, the two-year period to file and serve a negligence claim when a valid Notice of Intention was filed has not yet lapsed. The claim is therefore not late as to this cause of action, and there is no basis for late claim motion.
I reach the opposite conclusion in regard to any malpractice claim, i.e., a claim involving negligence in the medical/psychiatric treatment Xie received (see Scalisi v New York Univ. Med. Ctr. , 24 AD3d 145, 146-147 [1st Dept 2005] ). To the extent claimant seeks to bring such a claim, there is no specifics at all in the NOI as to the alleged failure to diagnose or treat the decedent's condition. Therefore, the notice of intention is invalid as to any malpractice claim, and the time to file it under Court of Claims Act § 10 has run.
Finally, claimant has not set forth any basis to file a late claim for medical malpractice.
It is not clear that claimant is actually seeking such relief, as her application for section 10(6) relief does not spell out the specific causes of action she is asserting, and why each has merit. Since both the notice of intention and claim raise general contentions of malpractice, and the State specifically raises this issue in its opposition papers, I address it here.
In determining whether such relief is warranted, the Court must consider the factors listed in the statute: the delay in filing the claim was excusable; defendant had notice of the essential facts constituting the claim; defendant had an opportunity to investigate; defendant was substantially prejudiced; the claim appears to be meritorious; and whether the claimant has any other available remedy ( Court of Claims Act § 10 [6] ; Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys. , 55 NY2d 979, 981 [1982] ). When a claim lacks merit, however, a late claim motion may be denied on the basis of that factor alone, since it would be "futile" to allow the filing of a late claim that is "legally deficient" (see Prusack v State of New York , 117 AD2d 729, 730 [2d Dept 1986] ; see also McCarthy v New York State Canal Corp., 244 AD2d 57, 60 [3d Dept 1998] ["in the absence of the appearance of merit to claimant's claim, the request to file a late notice of claim ... should have been denied"]). Since there is nothing in the notice or claim but the barest bones allegations of medical malpractice, they would not meet the requirements of section 11(b), and it would be futile to allow claimant to proceed on this basis. Therefore, while a late claim would be ripe as to a cause of action for medical malpractice, the motion is denied in this regard.
In sum, it is ORDERED that claim no. 136243 is dismissed without prejudice sua sponte for lack of jurisdiction; and it is further
ORDERED that claimant's late claim motion is denied as unripe in regard to causes of action for wrongful death and negligence, since the time for claimant to file a claim has not run for these causes of action; and it is further
ORDERED that to the extent claimant seeks late claim relief to assert a claim for medical malpractice, it is denied.
Papers Considered
1. Notice of Motion for Application to File a Late Claim dated July 30, 20 Affidavit of Hailan Cui, dated July 29, 2021 21; Affirmation in Support of Jesse J. Weiner, Esq., dated July 30, 2021, and attached Exhibits.
2. Affidavit in Opposition of Assistant Attorney General Cheryl M. Rameau, Esq., dated August 13, 2021, and attached Exhibits.