Opinion
# 2021-041-009 Claim No. NONE Motion No. M-96224
02-03-2021
BARBARA GARNER v. THE STATE OF NEW YORK
HELD & HINES, LLP By: Philip M. Hines, Esq. HON. LETITIA JAMES New York State Attorney General By: Tamara B. Christie, Esq. Assistant Attorney General
Synopsis
Application to file late claim is granted where claim alleging that defendant's negligence caused hand-cuffed and leg-shackled inmate walking with the aid of a cane to fall on wet walkway at front gate area of correctional facility while being escorted by correction officers to facility transportation van to take inmate to outside hospital has appearance of merit and where defendant had prompt notice of circumstances underlying claimant's accident and injuries.
Case information
| UID: | 2021-041-009 |
| Claimant(s): | BARBARA GARNER |
| Claimant short name: | GARNER |
| 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-96224 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | HELD & HINES, LLP By: Philip M. Hines, Esq. |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General By: Tamara B. Christie, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 3, 2021 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves for permission to file a late claim. Defendant opposes the motion.
The proposed claim alleges that on November 26, 2018, at about 9:35 a.m., the inmate/claimant fell and was injured as she was "walking on a path from the front gate of the entry building at Albion Correctional Facility to the transportation van when she was caused to trip and fall due to being leg shackled by the defendant against medical orders." Claimant's affidavit supporting her late claim application further explains that:
"I was being taken on an outside medical trip for an open MRI scheduled that day for my suspected diagnosis of multiple sclerosis. I was walking on a path from the front gate of the entry building at Albion Correctional Facility to the transportation van, using a cane to assist me because of my neurological problems. I was in handcuffs and leg irons (even though I believe I had a 'no shackle' order in place), which made it harder to walk. It was raining and the path was wet and slippery. I was accompanied by two Corrections Officers. I told one of the Corrections Officers that I was having trouble walking. That Corrections Officer turned her head back to me and said something, but because she was six feet in front of me and it was raining, I could not hear what she said. While walking to the van, I tripped on the chain of the leg irons and fell face first on the sidewalk near the parking lot, striking my right knee and scraping my face and knuckles on the ground."
The proposed claim further alleges that the defendant's negligence included the following:
"[T]he failure to properly hire its corrections officers; the failure to properly train its corrections officers; the failure to properly monitor its corrections officers; the failure to properly supervise its corrections officers; the failure to properly retain its corrections officers; the failure to properly control its corrections officers; the failure to properly discipline its corrections officers; the failure to protect the Claimant from known and foreseeable harm; the failure to have adequate policies and procedures in place concerning the manacling, shackling and placing of leg irons; the failure to take cognizance of the fact that Claimant needed to use a cane to ambulate; the failure to take cognizance of the fact that Claimant's use of a cane rendered her more likely to fall while restrained in leg irons; the failure to take cognizance of the fact that Claimant's use of a cane rendered her more likely to fall in wet, rainy, slippery conditions; the failure to properly escort the Claimant; the failure to provide a wheelchair to take Claimant to the transportation van; the failure to hold Claimant by the arm or otherwise assist her in reaching the transportation van; the failure to heed Claimant's call for assistance; the failure to respond to Claimant's call for assistance; the failure to keep Claimant in sight while escorting her to the transportation van; the failure to refrain from placing Claimant in leg irons when a 'no shackling' order was in place, the failure to refrain from causing and creating unreasonable risks and dangers to the Claimant; the failure to take suitable, proper and sufficient precautions for the safety of the Claimant under the circumstances and conditions then and there existing, and other failures to properly safeguard and protect the Claimant herein."
Claimant was diagnosed as having suffered a comminuted fracture of her right knee and has undergone "open reduction-internal fixation of the right patella and subsequent surgical removal of hardware." Claimant alleges having endured pain and suffering, and deformity and limitation of motion of the right knee, among other injuries.
Claimant, prior to retaining an attorney and while acting pro se, served a notice of intention to file a claim (notice of intention) on the Attorney General, by certified mail, return receipt requested, on February 22, 2019, within ninety days after accrual of the claim.
After claimant retained her present attorney on June 15, 2020, a Freedom of Information Law request was made by her attorney for a copy of claimant's notice of intention. Claimant's attorney received a copy of claimant's notice of intention on September 25, 2020. After reviewing claimant's notice of intention, claimant's attorney determined that the claimant's notice of intention may be jurisdictionally defective because it "was not complete within the meaning of Court of Claims Act §11(b)."
Claimant's attorney consequently made this application, on November 25, 2020, seeking permission to file and serve a late claim.
Court of Claims Act 10 (6) provides that the Court, upon application and in its discretion, may permit the late filing and service of a claim "at any time 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 claimant's negligence cause of action arose on November 26, 2018. The application to file a late claim was made on November 25, 2020, approximately two years after the ninety-day period to serve and file a claim had expired (see Court of Claims Act 10 [3]).
CPLR 214 provides a three-year period to commence an action for negligence and the negligence cause of action is not time-barred by CPLR Article 2.
In determining the application, Court of Claims Act 10 (6) provides that:
"[T]he court shall consider, among other 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."
In reviewing a late claim application, "the Court of Claims is required to consider, among other factors, those enumerated in Court of Claims Act § 10 (6), no one factor being controlling" (Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]; see Matter of Duffy v State of New York, 264 AD2d 911, 912 [3d Dept 1999]). In fact, "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981 [1982]).
Further, "it is well settled that the Court of Claims' broad discretion in this area should be disturbed only in the face of clear abuse" (Calco v State of New York, 165 AD2d 117, 119 [3d Dept 1991], lv denied 78 NY2d 852 [1991]).
Defendant does not challenge claimant's excuse for failing to timely serve and file her claim nor does defendant contest the intertwined issues of notice, opportunity to investigate and prejudice to the defendant. The defendant, through its correction officers and medical personnel, had immediate notice of claimant's accident and an opportunity to investigate the circumstances underlying the proposed claim. It was immediately clear that claimant had suffered significant injuries and defendant, in the exercise of due diligence, would be expected to, at a minimum, conduct a preliminary investigation of its potential liability for claimant's injuries. Defendant does not suggest that it would be prejudiced in the event late claim relief is granted. These factors weigh in favor of claimant.
Claimant has no alternative remedy.
Section 10 (6) requires that the proposed claim not be "patently groundless, frivolous or legally defective, and the record as a whole must give reasonable cause to believe that a valid cause of action exists" Sands v State of New York, 49 AD3d 444 [1st Dept 2008]; see Calverley v State of New York, 187 AD3d 1426, 1427 [3d Dept 2020]; Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl 2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). In Witko v State of New York (212 AD2d 889, 891 [3d Dept 1995]), the court noted that a proposed claim offered in a section 10 (6) application need only have "the appearance of merit."
Defendant initially argues that "to the extent movant has proposed a medical malpractice claim, any such claim lacks merit." Claimant asserts, in reply, that claimant "has filed a separate Claim for medical malpractice that bears Claim Number 135664. Since medical care and treatment was still ongoing at the time that Claim was filed, it is no longer the subject to this Motion for Leave to File a Late Claim."
The Court's inquiry is thus limited to claimant's negligence cause of action which essentially alleges that defendant failed to protect claimant from a foreseeable risk of serious injury by requiring claimant to traverse a wet slippery sidewalk in the rain, without assistance, while handcuffed and in leg restraints and while using a cane.
In that regard, a correctional facility superintendent has discretion to "provide for such measures as he may deem necessary or appropriate for the safety, security and control of correctional facilities" (see Correction Law 137[2] and 18[2]; see Matter of Shabazz v Portuondo, 260 AD2d 733 [3d Dept 1999], lv denied 94 NY2d 756). While courts should, generally, defer to prison authorities in matters of internal prison security (Blake v Selsky, 10 AD3d 774, 775 [3d Dept 2004]), the law further instructs that "[h]aving assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard inmates" (Sanchez v State of New York, 99 NY2d 247, 252 [2002]).
Defendant next challenges the admissibility of claimant's "out-of-state" affidavit (sworn to by claimant's "attorney-in fact" before a Florida notary public) in support of her late claim application by pointing that the affidavit, as initially submitted, did not include a "certificate of conformity" as envisioned by CPLR 2309 (c).
In reply, claimant has provided an acknowledgment of the subject affidavit, executed by claimant before a Florida notary public, in compliance with the requirements set forth in CPLR 2309 (c).
Further, the allegations of the claimant's affidavit comport with both the allegations of the proposed claim and contemporaneous records of the subject accident created by defendant. The Court therefore finds that no substantial right of the defendant would be prejudiced by considering the claimant's affidavit, and the Court rejects defendant's argument that the claimant's affidavit must be disregarded (see Sul-Lowe v Hunter, 148 AD3d 1326, 1329 [3d Dept 2017]).
Defendant next suggests that the proposed claim lacks merit because, on the date of the accident, "there was no medical restriction in place, which prohibited the use of leg/ankle shackles on movant."
In reply, the claimant correctly points out that the allegations of negligence set forth in the proposed claim and claimant's affidavit are more extensive and detailed than a solitary allegation regarding the allegedly unwarranted use of leg shackles on claimant. The shackling of claimant's legs was arguably only one factor among several (handcuffed while using a cane, wet and slippery conditions, lack of nearby support by the correction officer escorts) which allegedly caused claimant's fall and resulting injuries.
The proposed negligence claim demonstrates at least the "appearance of merit."
Based upon a balancing of the factors set forth in section 10 (6) of the Court of Claims Act, the Court grants claimant's application to file and serve a late claim.
Claimant is directed to file with the Clerk of the Court of Claims and serve her claim in compliance with sections 11 and 11-a of the Court of Claims Act within sixty (60) days of the filing of this decision and order.
February 3, 2021
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Petition, filed November 25, 2020; 2. Affirmation of Philip M. Hines, dated November 20, 2020, and attached exhibits; 3. Affidavit of Barbara Garner, sworn to November 25, 2020, and acknowledged on January 12, 2021; 4. Affirmation of Tamara B. Christie, dated January 6, 2021; 5. Affidavit of M.E. Klein, sworn to January 5, 2021; 6. Reply Affirmation of Philip M. Hines, dated January 12, 2021, and attached exhibit.