Opinion
Motion No. M-85609 # 2015-015-037
01-15-2015
CARDUCK BAGOT v. THE STATE OF NEW YORK
Carduck Bagot, Pro Se Honorable Eric T. Schneiderman, Attorney General By: Paul F. Cagino, Esquire Assistant Attorney General
Synopsis
Permission to file a late claim alleging emotional distress allegedly arising from the negligence of prison officials in failing to facilitate a deathbed visit was denied.
Case information
| UID: | 2015-015-037 |
| Claimant(s): | CARDUCK BAGOT |
| Claimant short name: | BAGOT |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-85609 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Carduck Bagot, Pro Se |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Paul F. Cagino, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 15, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant, a pro se inmate, moves pursuant to Court of Claims Act § 10 (6) for permission to file and serve a late claim for emotional distress arising from the alleged negligence of prison officials in failing to facilitate a deathbed visit with his mother.
Movant alleges in his proposed claim that on December 9, 2013 he learned from Reverend Payne, a Chaplin at Great Meadow Correctional Facility, that his mother was dying. Although movant was permitted to speak with his mother by phone before her death, he alleges that Reverend Payne failed to ask him whether he wanted to visit his mother prior to her death. Movant alleges he inquired concerning the option of a deathbed visit the following day and Reverend Payne agreed to file the necessary paperwork to facilitate the visit. A week passed during which time movant alleges he repeatedly reminded the Reverend about his request for a deathbed visit with his mother. Upon further inquiry of a sergeant, movant was allegedly advised that form number 4206A, completed by Reverend Payne, indicated that he did not want a deathbed visit with his mother. Movant alleges that his mother died the next day, December 20, 2013.
Movant alleges that Reverend Payne failed to abide by Directive 4206 in that he erroneously indicated in the paperwork that movant did not desire a deathbed visit with his dying mother when, in fact, he had requested such a visit. Movant further asserts that prison protocols required any purported refusal to be recorded and signed by both staff and the inmate, which was not done here. Movant seeks damages for negligent infliction of emotional distress as the result of Reverend Payne's conduct in depriving him of a deathbed visit with his mother.
Court of Claims Act § 10 (6) permits this Court, if the applicable statute of limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy."
The first issue for determination upon a late claim motion is whether the application is timely. Section 10 (6) requires that a motion to file a late claim be made "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." The proposed claim alleges a cause of action for negligent infliction of emotional distress which, as against a citizen of the State, is required to be asserted within three years (Goldstein v Massachusetts Mut. Life Ins. Co., 32 AD3d 821 [2d Dept 2006]; Yong Wen Mo v Gee Ming Chan, 17 AD3d 356 [2d Dept 2005]; Augeri v Roman Catholic Diocese of Brooklyn, 225 AD2d 1105 [4th Dept 1996]). The instant application, having been filed and served well within the applicable time frame, is therefore timely.
Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965 [4th Dept 1994]). The statutory factors are not exhaustive nor is any one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117 [3d Dept 1991]). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Matter of Martinez v State of New York, 62 AD3d 1225 [3d Dept 2009]; Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).
The excuse advanced by movant for failing to timely serve and file the claim is that he was under the impression he was required to exhaust his administrative remedies before resorting to the Court of Claims. Such ignorance of the law is not a reasonable excuse for failing to timely serve and file a claim (Olsen v State of New York, 45 AD3d 824 [2d Dept 2007]; Matter of Robinson v State of New York, 35 AD3d 948 [3d Dept 2006]).
Addressing the intertwined issues of notice, opportunity to investigate and prejudice, the State makes no claim that it will be prejudiced by the delay in serving and filing a claim. Indeed, it appears from the allegations in the proposed claim that the State had notice of the claim by virtue of movant's verbal complaints and the written grievances he filed. As a result, these factors weigh in favor of the movant.
With respect to the required showing of merit, the claim is sufficiently established if the movant demonstrates that the proposed claim is not patently groundless, frivolous, or legally defective and there is reasonable cause to believe that a valid cause of action exists (Fernandez v State of New York, 43 Misc 3d 1221 [A] [Ct Cl, 2014]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl, 1977]). The applicable statutes and regulations make clear that deathbed visits are a privilege subject to the discretion of prison officials (Correction Law §§ 113; 855 [9]; 7 NYCRR 1901.1 [a]; 1904.1 [a]; see also Rivera v State of New York, 169 AD2d 885 [3d Dept 1991]). While the State is generally immune from liability for the discretionary determinations of its prison officials (Arteaga v State of New York, 72 NY2d 212 [1988]; Saldana v State of New York, 44 Misc 3d 1231 [A] [Ct Cl, 2014]; Goodale v State of New York, UID No. 2006-028-532 [Ct Cl, Sise, P.J., March 21, 2006]), here, movant does not allege that prison officials imprudently denied his request for a deathbed visit, but that they failed to abide by their own rules and regulations for permitting him even the opportunity to apply for such a visit (see 7 NYCRR 1900.3 [a], 1901.1 [a]). Indeed, the applicable regulations clearly permit "any inmate" to apply for a leave of absence to visit a parent if death appears imminent (7 NYCRR 1900.3 [a] [1]; 1901.1 [a]; claimant's Exhibit, Directive 4206 ). Where, as here, the potential liability of the State is premised, not upon the actual exercise of discretion, but the State's failure to exercise any discretion at all, the doctrine of qualified immunity affords the State no shield from liability (Haddock v City of New York, 75 NY2d 478 [1990]).
Nevertheless, to recover on a claim for negligent infliction of emotional distress, the circumstances must provide some indicia of reliability (Ornstein v New York City Health & Hosps. Corp., 10 NY3d 1 [2008]). As a matter of policy, therefore, liability for negligent infliction of emotional distress is limited to circumstances in which a breach of duty owed directly to the claimant results in psychological trauma accompanied by "residual physical manifestations" (Johnson v State of New York, 37 NY2d 378, 381 [1975]; citing, inter alia, Battalla v State of New York, 10 NY2d 237 [1961]; see also Justice v State of New York, 66 AD3d 1182 [3d Dept 2009]) or the circumstances are such that there exists a "guarantee that the claim is not spurious" (id. at 382). Such guarantees of genuineness have been found to exist in only limited circumstances, such as the negligent transmission of a death notification or the mishandling of a corpse (id.; see also Shipley v City of New York, 80 AD3d 171 [2d Dept 2010]; Estate of LaMore v Sumner, 46 AD3d 1262 [3d Dept 2007]; Massaro v O'Shea Funeral Home, 292 AD2d 349 [2d Dept 2002]). Movant here alleges no physical manifestations of injury as the result of the State's alleged breach of duty and the circumstances alleged are not the type that permit an inference of injury in the absence of physical manifestations (see Johnson v State of New York, UID No. 2006-016-002 [Ct Cl, Marin, J., Jan. 25, 2006]; Hughes v State of New York, UID No. 2012-049-053 [ Ct Cl, Weinstein, J., Oct. 12, 2012]).
Considering the lack of merit and the absence of a reasonable excuse for failing to timely serve and file the claim, movant's application for leave to serve and file a late claim must be denied. Accordingly, the motion is denied.
January 15, 2015
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
Notice of motion undated, filed September 3, 2014;
Affidavit of Carduck Bagot sworn to August 19, 2014 with exhibits;
Affirmation of Paul F. Cagino dated September 22, 2014 with exhibit;
Reply of Carduck Bagot dated October 20, 2014.