Opinion
# 2016-018-705 Claim No. 126295 Motion No. M-87161 Motion No. M-87205
03-03-2016
MOUNIR MRABET v. STATE OF NEW YORK
MOUNIR MRABET Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esquire of Counsel
Synopsis
Claim is dismissed. Claimant failed to comply with Court of Claims Act section 11 (b).
Case information
| UID: | 2016-018-705 |
| Claimant(s): | MOUNIR MRABET |
| Claimant short name: | MRABET |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126295 |
| Motion number(s): | M-87161, M-87205 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | MOUNIR MRABET Pro Se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esquire of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | March 3, 2016 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant brings a pre-answer motion (M-87161) to dismiss pursuant to CPLR Rule 3211 (a) (2) and (8), and Court of Claims Act section 11 (b). In response, Claimant has filed a summary judgment motion (M-87205) pursuant to CPLR Rule 3212. Defendant opposes that motion. Since Defendant's motion to dismiss raises issues of this Court's subject matter jurisdiction, it will be decided first (see Lepkowski v State of New York, 1 NY3d 201 [2003]).
A notice of intention to file a claim was properly served upon the Attorney General's office on March 9, 2015. The claim was properly served and filed on June 15, 2015.
The notice of intention states that as an inmate in Ogdensburg Correctional Facility (Ogdensburg), Claimant was diagnosed on December 24, 2014, with latent tuberculosis (TB) after entering the DOCCS' system on April 4, 2014, with a negative test.
The claim alleges that the State is negligent for failing to provide Claimant with an adequately safe environment free from communicable diseases, in that between April 4, 2014 and June 8, 2015, the State negligently allowed inmates, officers, and staff with active TB into general population thereby infecting Claimant. Claimant alleges that having custody of inmates, the State has a duty to protect them because they cannot defend themselves. One month prior to being diagnosed, Claimant was "coughing flem [sic]" and thereafter had his annual TB screening test which was positive. Claimant alleges he was diagnosed with TB on December 30, 2014. Allegations of his resulting health and anxiety issues complete the claim. Claimant has attached to the claim a copy of his medical record from March 21, 2014, showing a negative value for TB when he was at the Manhattan Detention Center. Claimant also attaches a copy of a "clinical report" dated December 25, 2014, reflecting that a sample was collected at Ogdensburg on December 23, 2014, finding Claimant tested positive for TB. Claimant also attaches a "Inmate Log of Visits" at Ogdensburg reflecting Claimant had only one visitor, his spouse, on April 4, 2015.
Defendant argues that the claim fails to meet Court of Claims Act section 11 (b) requirements as it fails to state the time when and the place where the claim arose. Defendant also contends that there is a lack of specificity regarding how the claim arose. Defendant asserts that the claim only states that Claimant contracted the illness while in prison, but does not allege from whom or when this occurred.
Defendant states the notice of intention also fails to provide the required information. The sufficiency of the notice of intention is primarily relevant to the issue of extending the time to file and serve a claim and does not take issue with the timeliness of the claim. Therefore, the timeliness issue has been waived (Court of Claims Act § 11 [c]).
Court of Claims Act section 11 (b) requires that a claim set forth [1] "the time when and [2] place where such claim arose, [3] the nature of same, [4] the items of damages or injuries claimed to have been sustained." (Court of Claims Act § 11 [b]). These elements have been held to be substantive requirements for maintaining an action in this Court, and the failure to provide this necessary information renders the claim jurisdictionally defective (Lepkowski, 1 NY3d at 206; Kolnacki v State of New York, 8 NY3d 277, 280 [2007]). In assessing the sufficiency of the claim for compliance with 11 (b) "absolute exactness" is not required, but what is required is sufficient information to enable the Defendant "to investigate the claim promptly to ascertain its potential liability under the circumstances." (Heisler v State of New York, 78 AD2d 767,767 [4th Dept 1980]). Each claim must be evaluated individually because the type of claim necessarily dictates what specific information is necessary to adequately comply with section 11 (b).
Defendant points to Rose v State of New York, UID No. 2001-015-170 [Ct Cl, Collins, J. Aug. 2, 2001] in support of its position that the claim must be dismissed. In Rose, Judge Collins dismissed a claim seeking damages for personal injuries arising from that pro se inmate's exposure to TB while incarcerated at Mid-State Correctional Facility for failure to comply with Court of Claims Act section 11 (b) (Id.) The claimant in that case had provided no time frame for the exposure, and described the defendant's negligence as "carelessness of the operation by Department of Correctional because of poorly prevalent to detect an contain patient or patient's with tuberculosis disease." The claim in this case provides more information and, thus, presents a much closer call to determine whether there has been compliance with Court of Claims Act section 11 (b).
Here, Claimant has specified in the claim the date that he discovered his injury - his diagnosis of TB on December 30, 2014, and the time frame he alleges he was exposed to the disease from April 4, 2014, until his diagnosis. The CPLR 214-c permits an action to be brought within three years of discovery of the injury where the injury is allegedly caused by the "latent effects of exposure to any substance or combination of substances, in any form, upon or within the body." (CPLR 214-c [b]). Court of Claims Act section 10 (7) permits the date of discovery of the injury to be the accrual date for claims that would fall under CPLR 214-c if brought against a citizen of the State. Although no case law was found directly holding exposure to TB was exposure to a "substance" for purposes of CPLR 214-c, given that other viruses and pathogens have been found to be "substances" it seems consistent to include the transmission of TB (see Martin v 159 W. 80 St. Corp., 3 AD3d 439, 439 [1st Dept 2004] [exposure to toxic mold, bacteria and fungi]; Otero v Presbyterian Hosp. in City of N.Y., 240 AD2d 279 [1st Dept 1997] [transmission of human immunodeficiency virus (HIV) by transfusion or otherwise governed by CPLR 214-c]; Yong Wen Mo v Gee Ming Chan, 17 AD3d 356 [2d Dept 2005] [infection with genital herpes falls within ambit of CPLR 214-c]).
Although Claimant sets forth as the end date for his exposure to TB June 8, 2015, since he was diagnosed with the condition on December 30, 2014, he had already been exposed to the disease as of that date.
Providing the date he discovered his injury is sufficient for purposes of Court of Claims Act section 10 (7) for accrual purposes and, here, Claimant has also provided the time frame within which he was allegedly exposed to TB - a matter of eight months. This might be sufficient information for some claims which provide other details, or where there are records that can be easily accessed for investigation (see Epps v State of New York, 199 AD2d 914 [3d Dept 1993] [negligent medical care allegedly received from January 1988 until June 26, 1990 sufficient for State to investigate medical records and interview personnel]; Condolff v State of New York, 18 AD3d 797 [2d Dept 2005] [time frame from July 11, 2002 through July 25, 2002 sufficient where claim alleged failed to adhere to reasonable procedures for credentialing medical staff during course of his hospitalization at specific hospital]; but compare Morra v State of New York, 107 AD3d 1115 [3d Dept 2013] [two year time frame insufficient where specific wrongdoing not alleged and location that State police officer allegedly engaged in bad investigation and improper use of his position covered two counties]; Mujica v State of New York, 24 AD3d 898 [3d Dept 2005] [time frame between 1983 and 2001 insufficient for alleged improper classification of court interpreters as independent contractors]; W. W. v State of New York, UID NO. 2008-038-585 [Ct Cl, DeBow, J., Feb. 29, 2008] [nine-year span insufficient for alleged sexual assault of developmentally disabled patient]).
Claimant asserts the alleged exposure to the TB pathogen occurred at Ogdensburg without any further specificity. Such a broad venue is clearly inadequate if the basis for the claim was a property defect or a public place (see Wilson v State of New York, 61 AD3d 1367 [4th Dept 2009] [accident on open roadway]; Sega v State of New York, 246 AD2d 753 [3d Dept 1998] [unspecified location on open roadway insufficient]; Schneider v State of New York, 234 AD2d 357 [2d Dept 1996] [defect in pavement in picnic area adjacent to parking lot in a park with several picnic areas adjacent to parking lots, insufficient]). Here, although Claimant is a pro se inmate whose location and movement within the facility is determined and authorized by the State, the specific location where Claimant could have come into contact with an individual with active TB over a span of eight months is too expansive. In order to determine its potential liability in this case, the State would have to retrace the steps of not only Claimant but any inmate, staff, or visitor who could have had active TB during an eight-month span of time in any building, vehicle, or location at Ogdensburg.
Although Claimant's description of the manner in which he alleges that the State was negligent is more developed than the claimant in Rose, (UID No. 2001-015-170) given the other deficiencies it, too, lacks some necessary details. Claimant does set forth the basis for the State's duty, its duty to keep inmates reasonably safe in its custody, and that it breached that duty by allowing him to come in contact with an individual who had active TB while he was in the inmate population at Ogdensburg. The claim sounds in ordinary negligence, not medical malpractice, nor constitutional tort. Yet, Claimant has not set forth any specificity as to how the State breached its duty; did it bunk Claimant with an inmate with active TB, fail to provide proper ventilation or follow proper disinfection procedures, did it not adequately test for TB, or only fail to isolate inmates or staff with the disease? Other than the fact that the State may have had inmates, staff, or officers with active TB in contact with its inmate population somewhere at Ogdensburg at some time in 2014, when Claimant may have come in contact with such an individual or individuals, under some circumstances, that would permit transmission is all that can be gleaned from the claim. Claimant has also not alleged the State's actual or constructive notice, although if the other necessary components were provided, the Court may have been able to infer constructive notice (Ferrugia v State of New York, 237 AD2d 858 [3d Dept 1997]; Heisler, 78 AD2d at 767).
It is really the culmination of all the deficiencies that render this claim insufficient for purposes of Court of Claims Act section 11 (b). In Lepkowski, the Court of Appeals made it clear that the "Court of Claims Act does not require the State to ferret out or assemble information that section 11(b) obligates the claimant to allege." (Lepkowski, 1 NY3d at 208) Although it is true that a claim need not provide every detail for the State to be able to assess its potential liability, here, the State would need to do far more than take the information provided in this claim to commence its investigation, it would need to uncover many of the details required by Court of Claims Act section 11 (b); such as, the specific location, the date, and the potential carriers of the disease in relation to Claimant's location within the facility for a period encompassing at least eight months. Section 11 (b) does not require the State to uncover this information, nor is there any assertion Claimant tried but could not provide any of this information.
Although this claim fails, Claimant has adequate time to bring a late claim application pursuant to Court of Claims Act section 10 (6) with additional information in the proposed claim to fulfill the requirements of section 11 (b).
Accordingly, Defendant's motion is GRANTED and the claim is DISMISSED. Based upon the foregoing, Claimant's motion is denied as moot.
March 3, 2016
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding these motions:
M-87161
1) Notice of Motion. 2) Affirmation of Thomas Trace, Esquire, in support, with exhibits attached thereto.
M-87205
3) "Notice of Opposition Motion." 4) Affidavit of Mounir Mrabet, sworn to July 30, 2015, in support, with exhibit attached thereto. 5) Affirmation in Opposition of Thomas Trace, Esquire.