Opinion
# 2017-015-271 Claim No. NONE Motion No. M-90896 Motion No. M-90898
10-31-2017
ESTATE OF M.D., A MINOR AND DECEASED, BY LOUIS DeCOSMO ADMINISTRATOR, AND J. D., A MINOR, BY LOUIS DeCOSMO, HIS FATHER AND NATURAL GUARDIAN v. STATE OF NEW YORK
Jonathan M. Cohen, L.L.C. by: Jonathan M. Cohen, Esq. Honorable Eric T. Schneiderman, Attorney General By: Anthony Rotondi, Esq. Assistant Attorney General
Synopsis
Motions to file a late claim or treat a notice of intention as a claim were both denied as the underlying statute of limitations for wrongful death and personal injuries had both expired when the motions were made.
Case information
| UID: | 2017-015-271 |
| Claimant(s): | ESTATE OF M.D., A MINOR AND DECEASED, BY LOUIS DeCOSMO ADMINISTRATOR, AND J. D., A MINOR, BY LOUIS DeCOSMO, HIS FATHER AND NATURAL GUARDIAN |
| Claimant short name: | DeCOSMO |
| Footnote (claimant name) : | The Court has amended the caption pursuant to 22 NYCRR 206.5 (e) (1) (iii) to protect the identity of the two minor children. |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended sua sponte to reflect the only properly named respondent. |
|---|---|
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-90896, M-90898 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Jonathan M. Cohen, L.L.C. by: Jonathan M. Cohen, Esq. |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Anthony Rotondi, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 31, 2017 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant, as the administrator of the estate of M.D. and as father and natural guardian of J.D., a minor, seeks permission to file a late claim pursuant to Court of Claims Act § 10 (6) (M-90896) or to treat his notice of intention to file a claim as a claim pursuant to Court of Claims Act § 10 (8) (M-90898).
The following facts are taken from the proposed unverified claim (movant's Exhibit G of motion number M-90896). Following a domestic incident on May 1, 2014 in which movant, who is totally blind, was punched in the face by his children's mother Katlin Wolfert (Wolfert), Wolfert obtained an ex parte restraining Order on May 5, 2014 requiring the movant to leave their home (Exhibit G, ¶¶ 22-24).
An amended restraining Order granting movant permission to enter the home for the purpose of retrieving his personal property was subsequently issued on May 29, 2014 (id. at ¶ 29).
By letter dated May 6, 2014, the Dutchess County Department of Community and Family Services (DCFS) informed movant that a report of suspected child abuse had been transmitted to them for investigation and evaluation (Exhibit G, ¶¶ 25, 28). The May 6th letter indicated that although the movant was named in the abuse report he was not "alleged to be responsible for causing injury, abuse, or maltreatment to the child(ren)" (id. at ¶ 25). At the initial hearing on Wolfert's petition against movant on May 12, 2014, an Order was issued by the Dutchess County Family Court requiring Child Protective Services (CPS) to investigate the welfare of the children, who were now in the exclusive custody of their mother Katlin Wolfert, and to report back to the Court on June 30, 2014 (id. at ¶ 35). Movant alleges that his sister called CPS in early May 2014 "following the opening of the Child Protective Services investigation", to report that she had observed signs of physical abuse on both M.D. and J.D. (id. at 31). According to the movant, a CPS investigation was initiated as a result of either his sister's abuse-report call or as instructed by the Court in the domestic incident involving Wolfert (id. at ¶ 32). CPS workers Alison Sterling and Monica Balassone were assigned to the case and Sterling visited the Dutchess County home on four or five occasions from May through June 2014 (id. at ¶¶ 33, 40, 41). In late June 2014, movant's sister noticed that M.D. had a black eye and directed her daughter, the movant's niece, "to report child abuse to CPS" (id. at ¶ 37). On June 30, 2014 Sterling reported to the Court that "the CPS investigation of M.D. and J.D. was going to close" (id. at ¶ 36). Movant alleges that he became aware of his niece's report to CPS "around the beginning of July 2014" but thought the matter was being investigated based upon the May 6, 2014 letter from DCFS (id. at ¶ 38).
It is unclear from the proposed claim whether CPS is the same entity as the DCFS.
On or about July 6, 2014 Wolfert moved to a trailer park in Ulster County, New York with her boyfriend Kenneth Stahli (Stahli) (id. at ¶¶ 55, 59). Stahli was the sole childcare provider during the day while Wolfert worked (id. at ¶ 60). The claim asserts that Sterling learned of Wolfert's relationship with Stahli in June as a result of her investigation on behalf of the DCFS and knew or should have known, based upon prior "indicated" reports of child abuse against Stahli, that he posed a danger to the children (id. at ¶¶ 49, 51). On August 5, 2014, an emergency medical technician and paramedic were summoned to the home of Wolfert and Stahli where M.D. was found unresponsive, lying supine on his back and covered in bruises, both old and new (id. at ¶¶ 62, 63). An autopsy report revealed that M.D. had suffered a lacerated pancreas and liver, which caused internal bleeding for several days, brain injuries, a subdural hematoma, and a broken rib. The post-mortem exam also revealed heroin had been administered to the child prior to his death (id. at ¶ 64).
Following the death of his son, movant received information from Rose Wilder, who lived in the same trailer park as Wolfert and Stahli, that she had become suspicious of child abuse involving both M.D. and J.D. and reported her concerns to the Ulster County CPS (id. at ¶ 69). Movant alleges that another neighbor also observed what he suspected were signs of abuse and reported his concerns to CPS and the New York State Central Registry "tip lines" (id. at ¶¶ 68,70).
On January 15, 2015, Wolfert was convicted of abuse and neglect and on May 8, 2015, Stahli was convicted for the "murder" of M.D. (id. at ¶¶ 80,81).
Movant's proposed claim alleges that the State through its New York State Office of Children and Family Services breached its statutory duty to immediately transmit reports of child abuse to the local CPS, together with the child-abuse records previously filed against Stahli (citing Social Services Law § 422 [2]; see Exhibit G, ¶¶ 74-77). Movant alleges the State had a special relationship with M.D. and J.D. both by virtue of the requirements of the Social Services Law and its voluntary assumption of a duty to act in the face of a known danger (id. at ¶¶ 86-90). The proposed claim premises the State's liability on its alleged negligent and grossly negligent conduct and sets forth causes of action for the conscious pain and suffering of both M.D. and J.D. No wrongful death claim for any pecuniary loss to M.D.'s distributees is asserted.
The first issue for determination upon a late claim motion is whether the application is timely. Court of Claims Act §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." A personal injury claim for pain and suffering against a citizen of the State is controlled by a three-year statute of limitations (CPLR 214 [5]). The instant claim for pain and suffering arising from injuries sustained by M.D. and J.D. accrued no later than the date of M.D.'s death on August 5, 2014. Since the three-year statute of limitations expired on Saturday, August 5, 2017, the time period is extended to Monday, August 7, 2017 in accordance with General Construction Law § 25-a (1) (see e.g. Wilson v Exigence of Team Health, 151 AD3d 1849 [4th Dept 2017]). While the State does not dispute the timely service of the instant motion, it contends the filing of the motion on August 8, 2017 was beyond the underlying statute of limitations, thereby divesting this Court of authority to grant late claim relief. The Court agrees.
Since the instant motion was filed beyond the expiration of the applicable three-year statute of limitations, the Court lacks discretion to grant movant's request for permission to file a late claim (see Milner v New York State Higher Educ. Servs. Corp., 24 AD3d 977 [3d Dept 2005]; Bergmann v State of New York, 281 AD2d 731 [3d Dept 2001]). Although J.D. is a minor, the Court of Appeals explained in Heslin v County of Greene (14 NY3d 67 [2010]) that the infancy toll of CPLR 208 is inapplicable to claims for the conscious pain and suffering of the deceased because, unlike claims for wrongful death, which compensate a decedent's distributees for their own pecuniary loss, a claim for conscious pain and suffering is personal to the deceased and belongs to the estate, not the distributees (see also Kelley v Schneck, 106 AD3d 1175 [3d Dept 2013], lv dismissed 21 NY3d 1069 [2013] ). Thus, late claim relief on behalf of the estate for M.D.'s pain and suffering is time-barred.
Movant does not invoke the 6-month tolling provision of CPLR 205 (a), applicable to certain previously terminated actions that were timely commenced. In any event, the Court is unable to discern the date the movant's notice of intention was served or the manner in which it was served. The Court is therefore unable to determine whether or not the federal court action, which was commenced on or about August 20, 2015 and terminated by Opinion and Order dated March 10, 2017, was timely commenced (see Morris v State of New York, 27 AD3d 282, 283 [1st Dept 2006]).
Although the Court does not construe the proposed claim as alleging a cause of action for wrongful death, any such cause of action would be untimely. EPTL § 5-4.1 provides a two-year statute of limitations for wrongful death claims. While this statute of limitations is not contained in the CPLR as specifically referenced in Court of Claims Act § 10 (6), CPLR 201 states that "an action . . . must be commenced within the time specified in this article unless a different time is prescribed by law." Inasmuch as a different time is prescribed by the Estates Powers and Trust Law (EPTL § 5-4.1), the two-year limitations period controls for the purpose of assessing the timeliness of the instant application to file a late claim alleging damages for the wrongful death of M.D. A wrongful death claim is therefore barred by the applicable statute of limitations set forth in EPTL 5-4.1.
Moreover, the infancy toll of CPLR 208 applies to the commencement of a wrongful death cause of action on behalf of an infant intestate distributee "until letters of guardianship are issued or majority of the intestate distributee, whichever occurs first, where there is no representative to commence the action on behalf of the infant before that time" (Baez v New York City Health & Hosps. Corp., 80 NY2d 571, 576-577 [1992], interpreting Hernandez v New York City Health & Hosps. Corp., 78 NY2d 687 [1991] [emphasis added]). Letters of administration were issued to movant on July 28, 2015 (movant's Exhibit C, see Exhibit A attached thereto) and the instant application to file a late claim was filed on August 8, 2017, more than two years following appointment of the estate representative and beyond the statute of limitations applicable to such causes of action (see EPTL 5-4.1; cf. Hallenbeck v Smith, 106 AD3d 1412 [3d Dept 2013] [where infant was the sole surviving distributee, commencement of wrongful death action two years after he reached the age of majority was timely]). Consequently, even if a wrongful death cause of action was discernible from the proposed claim, it is time-barred by the underlying statute of limitations.
Notwithstanding the above, to the extent the instant application includes a request to file a late claim for personal injures on behalf of J.D., the tolling provision set forth in Court of Claims Act §10 (5) applies and renders the instant application for leave to file a late claim unnecessary (see Barrett v State of New York, 161 AD2d 61 [2d Dept 1990], affd 78 NY2d 1111 [1991]; see also Henry v City of New York, 94 NY2d 275 [1999]; Freeland v Erie County, 122 AD3d 1348 [4th Dept 2014]; Kelley v Schneck, supra).
Movant's application to treat his previously served notice of intention as a claim pursuant to Court of Claims Act § 10 (8) must be denied for the same reason his motion pursuant to Court of Claims Act § 10 (6) was denied. Like Court of Claims Act § 10 (6), Court of Claims Act § 10 (8) prohibits the Court from granting such an application unless "it is made upon motion 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". Movant's application to treat his previously served notice of intention as a claim was not filed until August 8, 2017 which, as set forth previously, is beyond the applicable statutes of limitations.
Based on the foregoing, movant's motions to file a late claim (M-90896) and to treat his previously served notice of intention as a claim (M-90898) are both denied.
October 31, 2017
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered: Motion Number M-90896
1. Notice of Motion sworn to August 4, 2017; 1. Affidavit of Jonathan M. Cohen, Esq., sworn to August 4, 2017, with Exhibits A-G; 2. Movant's memorandum of law in support dated August 4, 2017; 3. Affirmation in Opposition of Anthony Rotondi, Esq., dated September 1, 2017, with Exhibit A. Motion Number M-90898 1. Notice of Motion sworn to August 4, 2017; 1. Affidavit of Jonathan M. Cohen, Esq., sworn to August 4, 2017, with Exhibits A-E; 1. Affirmation in Opposition of Anthony Rotondi, Esq., dated September 1, 2017, with Exhibit A.