Opinion
# 2014-044-554 Claim No. 122845 Motion No. M-84915
09-24-2014
REGINALD FLUELLEN, AS ADMINISTRATOR OF THE ESTATE OF GEORGE FLUELLEN v. THE STATE OF NEW YORK
RONEMUS & VILENSKY, LLP BY: Michael B. Ronemus, Esq., of counsel HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Maureen A. MacPherson, Assistant Attorney General
Synopsis
Court grants defendant's motion for summary judgment solely with regard to cause of action for medical malpractice in claim for medical malpractice/wrongful death of inmate.
Case information
| UID: | 2014-044-554 |
| Claimant(s): | REGINALD FLUELLEN, AS ADMINISTRATOR OF THE ESTATE OF GEORGE FLUELLEN |
| Claimant short name: | FLUELLEN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122845 |
| Motion number(s): | M-84915 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | RONEMUS & VILENSKY, LLP BY: Michael B. Ronemus, Esq., of counsel |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Maureen A. MacPherson, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 24, 2014 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, as administrator of the estate of his brother (Decedent), filed this claim containing causes of action for medical malpractice and wrongful death based upon the medical care that Decedent received while in the custody of the Department of Corrections and Community Supervision. Defendant State of New York (defendant) answered and asserted several affirmative defenses. Defendant now moves for summary judgment. Claimant opposes the motion.
Before addressing the merits of the motion, some background information is necessary. Decedent served defendant with a notice of intention to file a claim dated April 19, 2010 (the First Notice of Intention). The First Notice of Intention was rejected because it was not properly verified. On May 3, 2010, Decedent served defendant with a properly verified second notice of intention (the Second Notice of Intention) containing assertions of medical malpractice pertaining to defendant's alleged failure to diagnose and/or treat Decedent's colon cancer in a timely manner. On June 13, 2011, Decedent died due to "metastatic carcinoma of rectum." In April 2012, claimant moved to amend the caption of the Second Notice of Intention to substitute himself as administrator in place of Decedent. Defendant opposed the motion. The Court of Claims (Midey, Jr., J.) denied the motion, noting that no claim had been filed and there was no basis in law for substitution of claimant in the notice of intention (Fluellen v State of New York, UID No. 2012-009-011 [Ct Cl, Midey, Jr., J., June 7, 2012]).
Affirmation of Maureen A. MacPherson, Assistant Attorney General (AAG) dated Feb. 20, 2014, in Support of Motion, Exhibit B.
In its Decision and Order, the Court also noted that any tolling period provided by the continuous treatment doctrine would have been severed by service of the Second Notice of Intention on May 3, 2010 and "the two-year extension of time provided by service of [the Second] Notice of Intention . . . [had] expired, and there [was] no indication that a claim [had] been served or filed" (id. at 4). The Court additionally stated that if claimant intended to assert a claim for Decedent's personal injuries based upon the alleged malpractice, the time in which to move for late claim relief was 2½ years from the date of accrual of that cause of action (May 3, 2010, at the latest). The Court further advised that any claim for wrongful death must be filed and served within 90 days of claimant's appointment as administrator "unless a written Notice of Intention to File a Claim is served within such time, in which event the claim must be served and filed within two years after the death of the [D]ecedent" (id. at 5). The Court noted that claimant had "no authority to prosecute a claim, pro se, on behalf of the estate" and encouraged him to retain counsel immediately "[d]ue to the time constraints pertaining to the service and filing of a claim" (id. at 6).
On June 13, 2013, claimant filed this claim. Defendant now moves to dismiss the claim, arguing that "the doctrine of the case" (presumably the law of the case doctrine) should apply to the prior determination that the cause of action for medical malpractice was untimely and bar claimant from pursuing it in this claim. Defendant contends that even if the Court addresses the timeliness issue independently, the cause of action for medical malpractice is based upon the same allegations asserted in the Second Notice of Intention and because that notice severed the tolling period provided by the continuous treatment doctrine on May 3, 2010, the medical malpractice cause of action is untimely. Defendant further asserts that claimant's service of a notice of intention on April 23, 2012 (the Third Notice of Intention) was more than 90 days after his appointment as administrator, and thus the cause of action for wrongful death is also time-barred.
Conversely, claimant argues that the Third Notice of Intention was served on April 26, 2012, only 48 days after he was appointed as administrator, and this claim was timely filed and served within 2 years of Decedent's death. Claimant has not addressed the issue of whether the cause of action for medical malpractice is timely.
As an initial matter, "[t]he law of the case doctrine declares that a court of coordinate jurisdiction should not disregard an earlier decision on the same question in the same case" (State of New York v Barclays Bank of N.Y., 151 AD2d 19, 21 [3d Dept 1989], affd 76 NY2d 533 [1990]; see also People v Evans, 94 NY2d 499 [2000]). The Decision and Order issued by the Court on June 7, 2012 determined claimant's motion to amend the caption of a notice of intention to reflect his substitution in a representative capacity for Decedent. As that Court noted, there was no claim pending at the time (Fluellen, UID No. 2012-009-011 at 2). Claimant thereafter filed this claim resulting in this pending action. Because a determination has not previously been made on the present issues in this same claim, the law of the case doctrine does not apply (see Barclays, 151 AD2d at 21; Tenzer, Greenblatt, Fallon & Kaplan v Capri Jewelry, 128 AD2d 467, 469 [1st Dept 1987]). Further, defendant's contention that the claim should be dismissed as a repetitive filing which arises out of the same transaction litigated in another matter is also not persuasive. Claimant has not filed duplicative claims which seek the same relief and that are based upon the same transaction, but instead has filed only one claim commencing this present action.
The Court will now address the timeliness of this claim. In order to be timely, in an action to recover damages for personal injuries caused by the unintentional (negligent) conduct of an officer or employee of the State, a claim must be filed with the Clerk of the Court and served upon the Attorney General within 90 days after the accrual of the claim, unless a notice of intention to file a claim is served upon the Attorney General within 90 days after the accrual of such claim (Court of Claims Act § 10 [3]). Contrary to defendant's argument, claimant served the Third Notice of Intention on April 26, 2012 rather than on April 26, 2013. He then filed and served this claim on June 13, 2013. The latest date that a claim for medical malpractice could have accrued is June 13, 2011, the day that Decedent died. Because the Third Notice of Intention and the claim were both filed more than 90 days after June 13, 2011, the cause of action alleging medical malpractice is untimely. Accordingly, defendant's motion is granted to the extent that the medical malpractice cause of action is dismissed.
Defendant apparently relied upon claimant's allegation in the claim that he served the Third Notice of Intention "[o]n or about April 23, 2013" (Claim, ¶ 2). However, a review of the Third Notice of Intention, attached as Exhibit I to defendant's own motion papers, clearly establishes that the document was received by the Attorney General's Office on April 26, 2012.
A claim asserting a cause of action for wrongful death must be filed and served, or a notice of intention must be served, within 90 days after appointment of the executor or administrator of the estate (Court of Claims Act § 10 [2]). If a notice of intention is timely served, a claim must thereafter be filed and served within two years of the decedent's death (Court of Claims Act § 10 [2]).
On March 9, 2012, claimant was granted Limited Letters of Administration for Decedent's estate and had until June 7, 2012 in which to serve a notice of intention or to file and serve a claim. The Third Notice of Intention served on the Office of the Attorney General on April 26, 2012 is timely on its face, and the time in which to file and serve a claim was extended to June 13, 2013. Accordingly, this claim filed and served on that date is also timely.
Defendant's argument that claimant served the Third Notice of Intention in violation of the Court's directive to retain an attorney on behalf of the estate is also without merit. It is well-settled that any interested person may properly serve a notice of intention to file a claim for wrongful death (see Tooks v State of New York, 40 AD3d 1347 [3d Dept 2007], lv denied 9 NY3d 814 [2007]). Claimant, "a duly appointed personal representative in receipt of letters of administration" (Lichtenstein v State of New York, 93 NY2d 911, 913 [1999]), thereafter retained counsel who timely filed and served this claim.
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In conclusion, defendant's motion for summary judgment is granted solely to the extent that the medical malpractice cause of action is dismissed.
September 24, 2014
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims
The following papers were read on defendant's motion:
1) Notice of Motion filed on March 31, 2014; Affirmation of Maureen A. MacPherson, AAG, dated February 20, 2014, and attached exhibits.
2) Affirmation in Opposition of Michael B. Ronemus, Esq., dated July 17, 2014, and attached exhibits.
Filed papers: Claim filed on June 13, 2013; Verified Answer filed on July 24, 2013.