Opinion
# 2012-018-345 Claim No. 114132 Motion # 2012-018-345 Claim No. M-82049 # 2012-018-345 Claim No. M-82095
12-18-2012
RALPH RINK, as Administrator of the Estate of JOANNE RINK, and RALPH RINK, Individually v. STATE OF NEW YORK
Synopsis
Defendant's First Affirmative Defense in its answer to the amended claim is dismissed as is the Defendant's Second Affirmative Defense. Claimant's motion is denied as to Defendant's Fourth Affirmative Defense. Claimant's request for preclusion related to the matters as set forth in the Decision and Order is denied. The Court grants Defendant's motion to strike the note of issue. Case information
UID: 2012-018-345 Claimant(s): RALPH RINK, as Administrator of the Estate of JOANNE RINK, and RALPH RINK, Individually Claimant short name: Rink Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant (s): Third-party defendant (s): Claim number(s): 114132 Motion number(s): M-82049, M-82095 Cross-motion number (s): Judge: DIANE L. FITZPATRICK WALTER D. KOGUT, P.C. Claimant's attorney: By: Walter D. Kogut, Esquire ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: By: Maureen A. MacPherson, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: December 18, 2012 City: Syracuse Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The Court has before it two motions. Claimant brings a motion seeking to strike Defendant's First, Second and Fourth Affirmative Defenses and for an Order precluding Defendant from denying certain facts. Defendant opposes Claimant's motion and brings a separate motion to strike the note of issue to complete further discovery. Claimant opposes this motion.
The original claim in this action was brought for medical malpractice and negligence and was filed on August 24, 2007. Defendant interposed a verified answer on October 3, 2007. The claim arises out of a tragedy which occurred on June 6, 2007, when Joanne Rink was being treated at the State University of New York Upstate Medical University Hospital for injuries sustained in a motor vehicle accident. She began to suffer from paranoia and became agitated. Allegedly, Mrs. Rink began to exhibit very aggressive behavior and paranoid thoughts, and she was administered some medication. She was then placed in restraints from which she ultimately extricated herself, went out a window in her room and fell to a roof below, before ultimately falling another 27 feet to the concrete. Mrs. Rink suffered significant injuries and was in a coma until her death on February 3, 2010. Claimant was appointed as administrator of Joanne Rink's estate on March 4, 2010. Claimant was permitted to bring a late claim and to amend his claim to add a cause of action for Mrs. Rink's wrongful death. An amended claim asserting the negligence, medical malpractice, and wrongful death causes of action was filed and served on February 2, 2012.
Discovery has been ongoing on this claim for many years with several amended Preliminary Conference Orders, discovery motions, and conferences with counsel. The final Order for discoveryin this matter directed that all depositions be completed by June 22, 2012, that all discovery be completed by July 13, 2012, and a notice of issue filed by July 27, 2012.
Rink v State of New York, UID No. 2012-018-303 [Ct Cl, Fitzpatrick, J., Feb. 6, 2012].
Claimant sought, by letter to the Court dated July 9, 2012, an extension to complete discovery and was advised by the Court that no further discovery extensions would be granted and the note of issue should be filed. Claimant filed a note of issue on July 27, 2012. Claimant also sought to file a motion seeking the same relief herein requested on July 25, 2012, which the Clerk returned to him for failure to comply with the Rules for the Court of Claims 206.8 (b). Claimant objected to this, asserting that the motion did not seek resolution of discovery issues. The Court held a conference call with counsel on September 5, 2012, and directed the parties to submit their motions to the Court.
Motion No. M-82095 Motion to Dismiss Defendant's First, Second and Fourth Affirmative Defenses
Claimant argues that Defendant's First, Second, and Fourth Affirmative Defenses in its answer to the amended claim are frivolous and should be dismissed. Pursuant to CPLR 3211 (b), an affirmative defense may be dismissed where a defense has not been stated or has no merit. In determining such a motion, "the defendant is entitled to the benefit of every reasonable intendment of the pleading" (Becker v Elm A. C. Corp., 143 AD2d 965, 966 [2d Dept 1988]). The proper inquiry on such a motion is whether the Defendant actually has a defense rather than whether one is properly stated (Becker, 143 AD2d at 966). Defendant's First Affirmative Defense asserts that the Court lacks jurisdiction of the claim because it was not filed in compliance of Court of Claims Act § 11 (b) and lacks the required specificity. Claimant asserts that this defense (which was the Seventh Affirmative Defense in the original Answer) was withdrawn by Defendant in relation to the original claim in response to Claimant's Cross-Motion (CM-77250) dated September 30, 2009. Defendant argues that because the amended claim does not explicitly set forth all of the allegations of the original claim again, but instead incorporates, by reference, the allegations in the attached original claim, it fails to comply with Court of Claims Act § 11 (b).
Court of Claims Act § 11 (b) requires that the claim state the time when and the place where the claim arose, the nature of the claim, the items of damages or injuries, and the total amount claimed. A failure to adequately set forth the information required has been held to be a jurisdictional defect (see Kolnacki v State of New York, 8 NY3d 277, 280-281 [2007]; Lepkowski v State of New York, 1 NY3d 201 [2003]). To meet the requirements of Court of Claims Act § 11 (b), the claim must be made with "sufficient definiteness" to enable the State to promptly investigate and determine its potential liability under the circumstances; it must be "specific enough so as not to mislead, deceive or prejudice the rights of the State" (Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]). "In short, substantial compliance with section 11 is what is required" (Id.).
Although it may have been a better practice to explicitly set forth all of the allegations of the original claim in the amended claim with the additional cause of action for wrongful death by attaching the original claim and incorporating the terms by reference into the amended claim; the requirements of Court of Claims Act § 11 (b) have been met. Moreover, the new allegations set forth in the amended claim also meet the requirements of section 11 (b). Defendant's First Affirmative Defense in its answer to the amended claim should be dismissed.
Defendant's Second Affirmative Defense provides that the Court lacks jurisdiction because the claim was not properly filed in the Clerk's office in accordance with Court of Claims Act §§ 10 (2) and (11) (a) (i) and (b) and Uniform Rules 22 NYCRR part 206. Filing of the amended claim, in this instance, was by permission of the Court after a late claim application was made in accordance with Court of Claims Act § 10 (6). Defendant offers no argument in support of this defense, since filing was completed in compliance with the Decision and Order granting the late claim application. The Second Affirmative Defense should also be dismissed.
Defendant's Fourth Affirmative Defense indicates that any negligence or fault that caused Claimant's injuries, other than Decedent's own negligence or fault, was the negligence or fault of some third person(s) for whom Defendant is not responsible. Claimant argues that this same defense was part of Defendant's answer to the original claim as its Third Affirmative Defense. Claimant further argues that demand was made for Defendant to particularize that defense, yet after motion practice and a Decision and Order dated March 22, 2010 directing Defendant to do so within 20 days, Defendant failed to give any further information regarding this defense and is, therefore, precluded from asserting this defense at trial. Defendant attaches, in its opposition to this motion as Exhibit C, its response to this Court's March 22, 2010 Decision and Order in which it has identified potential third parties. Although not a Verified Bill of Particulars, Defendant did provide, by affirmation, the identity of the persons/entities it is asserting negligently caused or contributed to Decedent's injuries in compliance with the March 22, 2010 Decision and Order. The Court did not specifically address, and Defendant did not particularize the acts, or failure to act of these third parties which allegedly caused or contributed to Decedent's injuries. Although this information should be provided, within this context, striking Defendant's affirmative defense is not warranted. Accordingly, Claimant's motion is denied as to Defendant's Fourth Affirmative Defense.
Claimant also seeks an Order:
precluding Defendant from denying the facts and conclusions set forth in the 'Issue Descriptions' of the Disaster Plan Activation Report and precluding Defendant from denying either (a) that it had no emergency plan that required implementation of Incident Command to address the crisis that existed while Joanne Rink was on the roof and to activate the disaster mental health team to address that crisis or (b) that it failed to follow is [sic] such plan if it did exist.
Based upon the submissions, it appears that Defendant in a "Response to Notice to Admit" dated July 19, 2012, denied items (1) through (3) of Claimant's "Notice to Admit" dated June 28, 2012. Claimant apparently takes exception to Defendant's position, based upon the testimony of certain witnesses during their depositions as well as other documents produced by Defendant through discovery.
A notice to admit is a mechanism by which the truth of matters of fact to which "there can be no substantial dispute at the trial" can be established without the necessity of proof at trial (see CPLR 3123 [a]). A notice to admit which goes to the heart of the matters in issue is palpably improper (Voigt v Savarino Const. Corp., 94 AD3d 1574, 1575 [4th Dept 2012]; Miller v Kelly Co., 177 AD2d 1036 [4th Dept 1991]). In this case, what policies Defendant had in place applicable to the emergency presented by Decedent's condition and actions on June 6, 2007, whether appropriate policies were followed, and what Defendant did or did not do that may have caused or contributed to Decedent's actions, injuries, and death, are matters that go to the heart of this case and are not "clear cut" matters of fact (Miller, 177 AD2d at 1036). Claimant's request for preclusion related to these matters is denied.
Motion No. M-82049 Motion Seeking An Order Striking Note of Issue
Defendant argues that the note of issue filed in this matter on July 27, 2012, should be stricken because additional depositions are necessary related to the recently amended claim (February 2, 2012) asserting the wrongful death cause of action and Claimant's Bill of Particulars on the wrongful death cause of action dated July 11, 2012. Following service of the amended claim in this matter, Defendant served upon Claimant a notice to take the oral deposition of Andrew Rink and Ralph Rink. Andrew Rink resides in the State of Florida and his deposition was taken on June 21, 2012.Ralph Rink's deposition was taken prior to Decedent's death and the filing and service of the amended claim.
Based upon counsels' affirmations and the notice to take oral deposition (Exhibit B attached to Defendant's motion) the deposition was taken on June 21, 2012 although the cover for Andrew Rink's deposition (Exhibit H attached to Defendant's motion) indicates that the deposition was taken on June 21, 2011 .
Section 206.12 (d) of the Uniform Rules for the Court of Claims provides that:
Within 20 days after service of a note of issue and certificate of readiness, any party to the action may move to strike the note of issue, upon affidavit showing in what respects the action is not ready for trial, and the court may strike the note of issue if it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of this section in some material respect. (Uniform Rules for the Court of Claims [22 NYCRR 206.12 (d)]).
Although there should have been sufficient time between the filing of the amended claim and the closure of discovery to hold the deposition of Mr. Ralph Rink, relating solely to the wrongful death cause of action, Defendant now asserts, in light of the allegations in the Claimant's most recent Bill of Particulars, a new deposition is needed of Ralph Rink.Given that Claimant, too, seeks additional discoveryand depositions, it appears that, in fact, discovery is still not complete. Accordingly, the Court will grant Defendant's motion to strike the note of issue. The Court directs the parties to comply with the following FINAL discovery schedule:
No additional deposition of Andrew Rink is necessary since the damages related to the wrongful death cause of action should have been the subject of inquiry during his June 21, 2012 deposition.
See Kogut Affirmation dated August 28, 2012, ¶13.
1. All depositions must be complete by April 5, 2013. This shall include a second deposition of Ralph Rink, related solely to new allegations and information in the verified Bill of Particulars dated July 11, 2012. Both parties must advise the Court, in writing, of any outstanding depositions that have not been scheduled by March 1, 2013, and provide a list of proposed dates for timely completion;
2. Any other discovery must be completed by April 19, 2013, and the parties must advise the Court, in writing, of any outstanding discovery that has not been provided as of March 1, 2013;
3. A note of issue and certificate of readiness must be filed by April 24, 2013;
4. Defendant shall supplement its Bill of Particulars to Claimant to specify the acts, or the failure to act, of each third party claimed to have caused or contributed to Decedent's injuries.
Accordingly, Claimant's motion is GRANTED to the extent that Defendant's First and Second Affirmative Defenses are dismissed. Claimant's motion in all other respects is DENIED. Defendant's motion is GRANTED as set forth herein.
December 18, 2012
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court considered the following documents in deciding these motions:
M-82049
1) Notice of Motion.
2) Affirmation of Maureen A. MacPherson, Esquire, Assistant Attorney General,
in support, with exhibits attached thereto.
3) Affirmation of Walter D. Kogut, Esquire, in opposition, with exhibits attached thereto.
4) Affirmation in Opposition to Motion to Strike Defendant's Affirmative Defenses and to Preclude Defendant from Denying Notice to Admit, and in Reply to Motion to Strike Note of Issue, of Maureen A. MacPherson, Esquire, Assistant Attorney General with exhibits attached thereto.
5) Letters from Scott M. Philbin, Esquire, dated November 30, 2012 and December 3, 2012, regarding the Intervenor, Excellus Health Plan, Inc.
M-82095
6) Notice of Motion.
7) Affirmation of Walter D. Kogut, Esquire, in support, with exhibits attached thereto.
8) Affirmation in Opposition to Motion to Strike Defendant's Affirmative Defenses and to Preclude Defendant from Denying Notice to Admit, and in Reply to Motion to Strike Note of Issue, of Maureen A. MacPherson, Esquire, Assistant Attorney General with exhibits attached thereto.
9) Letters from Scott M. Philbin, Esquire, dated November 30, 2012 and December 3, 2012, regarding the Intervenor, Excellus Health Plan, Inc.