Opinion
# 2015-018-659 Claim No. NONE Motion No. M-87349
11-23-2015
SHELTON YOUNGv. STATE OF NEW YORK
SHELTON YOUNG Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Ray A. Kyles, Esquire Assistant Attorney General
Synopsis
Movant's application is GRANTED as to his claim related to the State's negligence in failing to provide a safe work environment and to maintain its property in a reasonably safe condition. The motion related to the medical malpractice cause of action is denied as unnecessary.
Case information
| UID: | 2015-018-659 |
| Claimant(s): | SHELTON YOUNG |
| Claimant short name: | YOUNG |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-87349 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | SHELTON YOUNG Pro Se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Ray A. Kyles, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 23, 2015 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant brings a Court of Claims Act section 10 (6) motion seeking permission to file a late claim. Defendant opposes the relief.
The proposed claim seeks damages for personal injuries Movant suffered while an inmate at Cape Vincent Correctional Facility. He alleges that on October 2, 2013, at approximately 1:30 p.m., he was working in the mess hall when he slipped and fell in the "Dishroom" [sic] on a slippery liquid and water from a leaking dish machine. Movant alleges that he brought this condition to the attention of the mess hall officers and wrote letters to the Superintendent of the facility, and further asserts that he was not provided with proper medical care for the injures he sustained. He seeks $150,000 in damages for his physical and psychological pain and suffering.
Movant tried to timely commence this action by serving a notice of intention on the State on December 16, 2013, by regular mail. A second notice of intention was served on the State on January 8, 2014, by certified mail, return receipt requested. However, this second notice of intention was not verified and was timely rejected by the Attorney General's office. Movant, thereafter, served a third notice of intention properly verified on March 20, 2014, by certified mail, return receipt requested.
The Court of Claims Act section 10 (6) allows a claimant who has failed to properly serve a notice of intention or who has failed to file and properly serve a claim within the time frame set forth in Court of Claims Act section 10 to make an application to the Court to file such a claim, in the discretion of the Court, at any time before an action asserting a like claim against a citizen of the State would be barred under article two of the CPLR (Court of Claims Act § 10 [6]). Movant's motion is timely (Court of Claims Act § 10 [6]; CPLR 214 [5]; 214-a).
In addressing an application for permission to file a late claim, consideration must be given to the six factors listed in Court of Claims Act section 10 (6) and any other relevant factors. No one factor is decisive, rather it is a balancing of all of the factors that may support the discretionary decision to grant the application (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys. 55 NY2d 979 [1982]; Ledet v State of New York , 207 AD2d 965 [4th Dept 1994]).
The first factor is whether the delay in filing the claim is excusable. The excuse Movant proffers is that the Attorney General unjustifiably rejected his notice of intention and chose to treat it as a nullity. Movant has attached copies of the notices of intention dated December 17, 2013, and March 8, 2014. It is clear that the December 17, 2013, notice of intention has only his notarized signature, it does not have a proper verification (CPLR 3020). The underlying reason Movant asserts for the untimeliness is really ignorance of the law, that is a lack of knowledge of the statutory requirements for a notice of intention and the distinction between a notarized signature and a verification. Ignorance of the law is never a valid excuse (see Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002] lv denied 99 NY2d 589 [2003]; Matter of Galvin v State of New York, 176 AD2d 1185 [3d Dept 1991]; Modern Transfer Co. v State of New York, 37 AD2d 756 [4th Dept 1971]).
Despite the lack of a valid excuse, the factors of notice, opportunity to investigate, and prejudice to the State all weigh in favor of granting Movant's application. The State had some notice of the facts related to this claim because Movant made the State employees in the mess hall aware of his injuries, sought treatment in the infirmary, and filed a grievance. Movant also served one timely notice of intention and two others in short succession. Despite the improper service of the first, and the lack of proper verification of the second, those notices did provide the necessary information placing the State on notice of the underlying facts, providing an opportunity to investigate, and eliminating any prejudice to the State in allowing the proposed claim to be filed and served late.
The next factor, whether the claim appears to be meritorious, is often referred to as the most essential factor. Generally, a proposed claim meets this standard if it is not patently groundless, frivolous or legally defective, and upon consideration of the entire record, there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth. 92 Misc 2d 1, 11 [Ct Cl 1977]).
Movant raises two causes of action, negligence for allowing a dangerous condition to exist in the mess hall where Movant worked and medical malpractice for allegedly failing to properly treat the injuries he suffered after his fall.
A. Negligence
It is well-established that the State owes a duty to all who are on its property to keep it in a reasonably safe condition in view of all the circumstances including the risk of injury (Miller v State of New York, 62 NY2d 506, 513 [1984]; Bowers v State of New York, 241 AD2d 760 [3d Dept 1997]. Movant adequately asserts that the dishwasher in the mess hall leaked water and a slippery substance that caused him to fall and be injured. The State allegedly had notice of this dangerous condition in that Movant had complained of the problem to the mess hall staff and wrote letters to the Superintendent and Deputy Superintendent of Administration. Movant has set forth sufficient facts to support at least a potentially meritorious claim for a negligence cause of action for purposes of this late claim application.
B. Medical Malpractice
As for the medical malpractice cause of action, the analysis is different based upon the presented facts. Movant was injured on October 2, 2013. He attaches a copy of his Ambulatory Health Records reflecting his visit to the infirmary for the injuries he sustained that day. The records reflect Movant received treatment and further evaluation for the injuries he sustained on October 2, October 7, and 9, 2013. On December 10, 2013, a request for an orthopedic consultation was made referencing the continued pain in Movant's wrists and left elbow originating with his fall. On January 23, 2014, Movant was referred for physical therapy. He was evaluated on February 27, 2014, and later referred to Upstate University Neurology, where he was seen on May 12, 2014. It appears that as late as January 14, 2015, Movant had another medical evaluation for continued pain in his arms and hands.
Although, normally, the date of accrual is the date of injury, for medical malpractice actions there is a toll where there is continuous treatment (CPLR 214-a). Where there is continuous treatment, the time frame within which to commence an action does not begin to run until "the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint." (Borgia v City of New York, 12 NY2d 151, 156 [1962]; Green v Associated Med. Professionals of NY, PLLC, 111 AD3d 1430 [4th Dept 2013]). Although a patient's ongoing relationship with a physician or routine examinations are not continuous treatment, where further care or monitoring of a condition is contemplated by both the patient and the physician and additional appointments are anticipated or scheduled, this has been considered continuous treatment (Young v New York City Health & Hosps. Corp. 91 NY2d 291, 296 [1998]). Here, it is clear that Movant's treatment for the injuries he sustained in the October 2, 2013 fall continued at least to January 23, 2014, when he was referred for physical therapy. As a result, the verified notice of intention that Movant properly served upon the Attorney General on March 20, 2014, was sufficient to extend Movant's right to file and serve a timely claim for medical malpractice until at least July 23, 2016. As a result, this cause of action is still timely, and there is no need for permission to file a late claim in accordance with Court of Claims Act section 10 (6) asserting medical malpractice for the injuries he sustained in his fall on October 2, 2013.
The final factor is whether the proposed claimant has any other remedy available. It does not appear from the facts as alleged that Movant would have any other remedy.
Accordingly, based upon the foregoing, Movant's application is GRANTED as to his claim related to the State's negligence in failing to provide a safe work environment and to maintain its property in a reasonably safe condition. The motion related to the medical malpractice cause of action is denied as unnecessary. Movant is directed to file and serve his proposed claim, in accordance with the Court of Claims Act and all other applicable rules, within 60 days of the date this Decision and Order is filed with the Clerk of the Court.
November 23, 2015
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding this motion: 1) Notice of Motion. 2) Affidavit of Shelton Young, sworn to August 25, 2015, in support, with exhibits attached thereto. 3) Affirmation of Ray A. Kyles, Esquire, Assistant Attorney General, in opposition, with exhibits attached thereto.