Opinion
# 2015-015-049 Claim No. 120373 Motion No. M-86143
04-22-2015
VIRGINIA BOOTH as Administrator for the Estate of DANA BOOTH, Deceased v. THE STATE OF NEW YORK
Kuharski, Levitz & Giovinazzo, Esquires By: Lonny Levitz, Esquire Trial Counsel to Leventhal and Klein, LLP Honorable Eric T. Schneiderman, Attorney General By: Belinda A. Wagner, Esquire Assistant Attorney General
Synopsis
Motion to reargue trial decision was denied.
Case information
| UID: | 2015-015-049 |
| Claimant(s): | VIRGINIA BOOTH as Administrator for the Estate of DANA BOOTH, Deceased |
| Claimant short name: | BOOTH |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 120373 |
| Motion number(s): | M-86143 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Kuharski, Levitz & Giovinazzo, Esquires By: Lonny Levitz, Esquire Trial Counsel to Leventhal and Klein, LLP |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Belinda A. Wagner, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 22, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves pursuant to CPLR 2221 to renew and reargue a decision of this Court dismissing the claim following trial.
Claimant seeks damages for the pain and suffering and wrongful death of her son while he was an inmate at Eastern Correctional Facility, alleging that correction staff at the prison failed to provide timely treatment to the decedent following an asthma attack. By decision dated October 30, 2014, the claim was dismissed following trial. Claimant contends in support of her motion that the court overlooked or misapprehended the evidence regarding whether a Directive of the Department of Corrections and Community Supervision (Directive 4059), which required that prison staff receive training in the recognition of the signs and symptoms of a healthcare emergency, was prospective in nature. Claimant also contends that defendant's failure to produce the Directive that was in effect prior to June 20, 2011, the effective date of the subject Directive, supports setting aside the trial decision and rendering a decision in claimant's favor.
Motions following the issuance of a decision in a non-jury trial are appropriately made pursuant to CPLR 4404 (b), not CPLR 2221, which is applicable to motions to reargue or renew a prior motion. Such post-trial motions are required to be made within 15 days after issuance of the decision (CPLR 4405). The trial decision, dated October 30, 2014, was served with notice of entry on December 11, 2014, rendering the instant motion, served on January 12, 2015, untimely. Insofar as claimant has failed to establish good cause for the belated motion, it must be denied as untimely (Turco v Turco, 117 AD3d 719, 723 [2d Dept 2014]). In any event, the Court is unpersuaded that it overlooked or misapprehended the evidence in rendering its decision.
A decision issued after a non-jury trial may be set aside under CPLR 4404 (b) where the Court misapprehends the evidence or the claimant's theory of liability (Wong v 2669 Owners Ltd., 126 AD3d 451 [1st Dept 2015]; Paterno v Strimling, 107 AD3d 1233 [3d Dept 2013]). To the extent claimant contends that the Court misconstrued Directive 4059 when it concluded that the training requirements for prison staff in recognizing and responding to healthcare emergencies were prospective in nature, the Court disagrees. While the Directive, effective June 20, 2011, included "difficulty breathing" among the ailments qualifying as a healthcare emergency, the training requirements for recognizing the signs and symptoms of a healthcare emergency were clearly prospective. The Directive states in this regard: "Initial and on-going training . . . shall include instruction in . . . [r]ecognition of signs and symptoms, and knowledge of actions required in potential emergency situations" (Exhibit 4, ¶ VI [A] [1] [emphasis added]). Further support for the conclusion that these training requirements were prospective in nature is the language found in the next paragraph of the Directive which states: "The facility Superintendent . . . shall ensure that local procedures are developed and sufficient resources are provided to fulfill the training responsibilities specified in section VI-A (above)" (Exhibit 4, ¶ VI, [B]). In addition, the Directive itself includes the statement that "[a]ll security and healthcare staff have been trained in basic first aid, including cardiopulmonary resuscitation (CPR) and operation of an automatic external defibrillator (AED)" (Exhibit 4, ¶ II).
Claimant appears to understand the Court's decision as holding that Directive 4059 was not in effect on June 28, 2011, the date of the decedent's death. That was not the Court's determination. Rather, the Court held that the training requirements set forth in the Directive were intended to be undertaken subsequent to its June 20, 2011 effective date. The Court further found that the required training had not yet been provided to security staff when, eight days later, decedent's healthcare emergency occurred. Rather, prison staff acted in compliance with the "Sick Call & Emergency Procedures" in effect at Eastern Correctional Facility which required that when an inmate becomes sick or injured, the supervising employee should first phone the nurse on duty and provide him or her the inmate's name, DIN and the signs and symptoms the inmate is exhibiting (see Trial Exhibit 3).
Correction Officer Meyer, the officer who first became aware the decedent was having difficulty breathing, phoned the infirmary, described the decedent's symptoms and was told to send him to the infirmary, which he did. Officer Meyer was unaware that the decedent was asthmatic when he directed him to the infirmary. The decedent was able to speak and was not coughing, wheezing or gasping for air at the time. While Officer Meyer did recognize urgency in the decedent's demeanor, he determined, reasonably in the Court's view, that the best course of action was to expedite his movement to the facility infirmary rather than calling a medical emergency by pulling the pin on his radio. In this regard, the Court notes that the trial record was silent with regard to protocols governing under what circumstances security staff are authorized or required to "pull the pin".
To the extent claimant contends that defendant's failure to produce the Directive in effect prior to June 20, 2011 requires reconsideration of the Court's trial decision, had claimant's counsel required the Directive they should have requested a conference (22 NYCRR 206.8 [b]) and, if necessary, moved pursuant to CPLR 3124 and/or 3126 prior to filing the note of issue. This was not done and claimant's counsel's post-trial allegation that the defendant "hid" this evidence is unwarranted. Based on the foregoing, claimant's motion is denied.
April 22, 2015
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
Notice of motion dated January 12, 2015;
Affirmation of Lonny Levitz dated January 12, 2015 with exhibits;
Affirmation in opposition of Belinda A. Wagner dated February 11, 2015;
Reply affirmation of Lonny Levitz dated February 18, 2015.