Opinion
# 2013-040-046 Claim No. 122483 Motion No. M-83313
06-28-2013
ROBERT GIST v. THE STATE OF NEW YORK
Synopsis
State's motion to dismiss Claim as untimely and for failure to state a cause of action denied.
Case information
UID: 2013-040-046 Claimant(s): ROBERT GIST Claimant short name: GIST Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 122483 Motion number(s): M-83313 Cross-motion number(s): Judge: CHRISTOPHER J. McCARTHY RANKIN & TAYLOR, PLLC Claimant's attorney: By: Robert M. Quackenbush, Esq. ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General of the State of New York By: Jessica Hall, Esq., AAG Third-party defendant's attorney: Signature date: June 28, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
For the reasons set forth below, Defendant's motion to dismiss the Claim pursuant to CPLR 3211(a)(2) and (8) on the basis that the Court lacks both subject matter jurisdiction over the Claim and personal jurisdiction over the Defendant is denied. The State's motion to dismiss pursuant to CPLR 3211(a)(7) on the basis that the Claim fails to state a cause of action is also denied.
The Claim was filed in the office of the Clerk of the Court on March 12, 2013 and alleges that, on December 8, 2012, while Claimant was incarcerated at Franklin Correctional Facility ("Franklin"), located in Malone, New York, his brother informed staff at Franklin that Claimant's mother was ill and hospitalized at Buffalo General Hospital. Later that day, Franklin's Imam Ahmed informed Mr. Gist of his mother's illness (Claim, ¶¶ 1, 3-4). On December 9, 2012, Franklin's Rabbi Heller confirmed with the hospital that Claimant's mother was gravely ill. While speaking with Rabbi Heller about his mother's illness, Claimant said that he would like to visit his mother in the hospital (id. at ¶ 5). On December 10, 2012, of the hospital's representatives advised Franklin staff that Claimant's mother was gravely ill and that his family was requesting that Claimant be granted a "death bed visit" (id. at ¶ 6). On the next day, December 11, 2012, hospital staff informed Franklin staff, via facsimile communication, that the death of Claimant's mother was imminent (id. at ¶ 7). On December 12, 2012, the superintendent at Franklin formally approved Claimant's request for a death bed visit. On December 14, 2012, Claimant's brother informed Franklin staff that his mother had passed away, and Franklin staff then confirmed the funeral arrangements (id. at ¶¶ 8, 11-12).
Despite the fact that the death bed visit had been approved on December 12, 2012, and despite the fact that Franklin staff knew Claimant's mother had passed away on December 14, 2012, no one at Franklin informed Claimant that his mother had died (id. at ¶ 14).
On December 17, 2012, Franklin staff allowed Claimant to go through with his death bed visit and he was sent to "Gowanus" Correctional Facility presumably en route to see his mother one last time before she died (id. at ¶ 15).
The Court notes that it was unable to locate a correctional facility entitled Gowanus operated by the New York State Department of Corrections and Community Supervision. However, there is a Gowanda Correctional Facility located in Erie County, New York.
At intake upon his arrival at "Gowanus," a prison nurse made a comment to Claimant about his "funeral trip." Later that day, an inmate at that facility told Claimant, in sum and substance, "I'm sorry for your loss." Only after Claimant asked a correction officer about the delay was Claimant informed that his mother had already died and that he was on a funeral trip rather than a death bed visit trip (id. at ¶¶ 16-18).
The Claim asserts that Defendant breached its duty of care to Claimant by failing to provide him with a death bed visit once the superintendent approved it and by failing to inform him of his mother's death. It is asserted that Claimant suffered emotional distress and mental anguish as a result of Defendant's negligence.
Pursuant to the Court of Claims Act § 10(3), the provision applicable to personal injury actions caused by negligence or unintentional torts, Claimant was required to file and serve his Claim within 90 days from the date of accrual unless a written Notice of Intention to File a Claim was served upon the Attorney General within such time period. In that case, the Claim itself was required to be filed and served upon the Attorney General within two years after the accrual of the Claim. In either case, Claimant was required to initiate action within 90 days of the Claim's accrual.
In her affirmation submitted in support of the motion, Defense counsel asserts that, on February 26, 2013, Claimant, acting pro se, served a Notice of Intention to File a Claim by regular mail upon Defendant (Affirmation of Jessica Hall, Esq., ¶ 1 and Exhibit A attached thereto). Counsel states that the Notice of Intention alleges that Claimant's claim accrued on December 9, 2012. Counsel further asserts that, in serving the Notice of Intention, Claimant failed to comply with Court of Claims Act § 11(a)(i), which provides that the Notice of Intention be served upon the Attorney General either personally or by certified mail, return receipt requested. Counsel states that, since the Notice of Intention was improperly served, it did not extend Claimant's time to serve and file a Claim beyond 90 days of accrual. Counsel further argues that, since Claimant alleges in the Notice of Intention that his Claim accrued on December 9, 2012, he had to serve and file a Claim on or before Monday, March 11, 2013 . Counsel states that since the Claim was personally served upon Defendant on March 12, 2013, the Claim is untimely and must be dismissed.
As the ninetieth day following accrual was Saturday, March 9, 2013, Claimant's time was extended to Monday, March 11, 2013 (see General Construction Law § 25-a[1]).
In opposition to the motion, Claimant's counsel asserts that the Claim did not accrue until December 18, 2012 as that is when his injury was sustained (Affirmation of Robert M. Quackenbush, Esq., ¶¶ 14, 16). Thus, the question presented is: when did the Claim accrue? A claim accrues pursuant to the Court of Claims Act when damages become ascertainable (Richard A. Hutchens CC, L.L.C. v State of New York, 59 AD3d 766, 768 [3d Dept 2009], lv denied 12 NY3d 712 [2009]; Waters of Saratoga Springs, Inc. v State of New York, 116 AD2d 875, 877 [3d Dept 1986], affd 68 NY2d 777 [1986]). Here, the Court agrees with Claimant that his Claim accrued on December 18, 2012 when he learned that his mother had died. That is when he realized that he was not going on a death bed visit and that the asserted delay in getting him to the hospital to visit his mother resulted in him not being able to see her.
Thus, that portion of the State's motion seeking to dismiss the Claim as untimely served and filed is denied.
The Court now addresses the portion of the motion that seeks dismissal based upon a failure to state a cause of action. This is a pre-answer motion pursuant to CPLR 3211(a)(7), not a motion for summary judgment pursuant to CPLR 3212, following joinder on issue. No notice has been given by this Court pursuant to CPLR 3211(c) that would fairly advise the parties that the motion was being converted from a motion to dismiss to a summary judgment motion, or the issues that would be deemed dispositive of the action. Additionally, it cannot be said that the parties have deliberately charted a summary judgment course (Henbest & Morrisey v W.H. Ins. Agency, 259 AD2d 829 [3d Dept 1999]; Four Seasons Hotels v Vinnik, 127 AD2d 310, 318, 320 [1stDept 1987]).
The Appellate Division, Third Department, in Griffin v Anslow (17 AD3d 889, 891-892 [3d Dept 2005]) stated:
It is well established that " '[o]n a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction. We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory … [D]ismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law' " (Arnav Indus. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303 [2001], quoting Leon v Martinez, 84 NY2d 83, 87-88 [1994] [citations omitted]; see Morgenthow & Latham v Bank of N.Y. Co., 305 AD2d 74, 78 [2003], lv denied 100 NY2d 512 [2003]; Unadilla Silo Co. v Ernst & Young, 234 AD2d 754 [1996]). "However, '[i]n those circumstances where the [plaintiff's] legal conclusions and factual allegations are flatly contradicted by documentary evidence, they are not presumed to be true or accorded every favorable inference, and the criterion becomes "whether the proponent of the pleading has a cause of action, not whether he has stated one" ' " (Morgenthow & Latham v Bank of N.Y. Co., supra at 78, quoting Ark Bryant Park Corp. v Bryant Park Restoration Corp., 285 AD2d 143, 150 [2001], quoting Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977] [citations omitted]; see also Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81 [1999], affd on other grounds 94 NY2d 659 [2000]).
Here, Claimant's allegations regarding the failure to provide him with a death bed visit after it had been approved by the superintendent and the failure to advise him of his mother's death do not consist of base legal conclusions nor are they flatly contradicted by documentary evidence. The result is that, in determining this motion to dismiss, the Court must accept the allegations of the Claim as true and ignore opposing affidavits (Henbest & Morrisey v W.H. Ins. Agency, 259 AD2d 829, supra at 830; Matter of Morey v City of Gloversville, 203 AD2d 625, 626 [3d Dept 1994]).
The Court's function on a motion to dismiss is to determine whether the Claimant possesses a cause of action, not simply whether he has stated one. In addition, "the pleading is to be afforded a liberal construction … We accept the facts as alleged in the [Claim] as true, accord [Claimant] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory [citations omitted]." (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Claimant asserts that Defendant was negligent and that Defendant negligently inflicted emotional distress (see Justice v State of New York, 66 AD3d 1182, 1183 [3d Dept 2009]) . These are cognizable causes of action. Therefore, the portion of the motion to dismiss the Claim for failure to state a cause of action, pursuant to CPLR 3211(a)(7) is denied.
June 28, 2013
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on the State's motion to dismiss:
Papers Numbered
Notice of Motion, Affirmation in Support & Exhibits attached 1
Affirmation in Opposition 2
Filed Papers: Claim