Opinion
# 2014-045-009Claim No. 120599Motion No. M-83585M-83728Cross-Motion No. CM-83843
03-13-2014
DANA LITTLEFORD v. STATE OF NEW YORK
The Gough Law Firm, LLP By: Deborah R. Gough, Esq. Hon. Eric T. Schneiderman, Attorney General By: Peter S. Zadek and Ross N. Herman, Assistant Attorneys General
Synopsis
Defs. motions to dismiss. Claimant's cross-motion for late claim, CCA 10(8) and CCA 10(5) relief.
Case information
UID: | 2014-045-009 |
Claimant(s): | DANA LITTLEFORD |
Claimant short name: | LITTLEFORD |
Footnote (claimant name) : | |
Defendant(s): | STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 120599 |
Motion number(s): | M-83585, M-83728 |
Cross-motion number(s): | CM-83843 |
Judge: | GINA M. LOPEZ-SUMMA |
Claimant's attorney: | The Gough Law Firm, LLP By: Deborah R. Gough, Esq. |
Defendant's attorney: | Hon. Eric T. Schneiderman, Attorney General By: Peter S. Zadek and Ross N. Herman, Assistant Attorneys General |
Third-party defendant's attorney: | |
Signature date: | March 13, 2014 |
City: | Hauppauge |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
The following papers were read and considered on these motions: Defendant's Notice of Motion to Dismiss the Claim, Defendant's Affirmation in Support with annexed Exhibits A-G, Defendant's Notice of Motion to Dismiss the "Complaint" served on June 3, 2013, Defendant's Affirmation in Support with annexed Exhibits A-C, Claimant's Notice of Cross Motion and Opposition to Defendant's Motions to Dismiss, Claimant's Affirmation in Support of Cross Motion and in Opposition to Defendant's Motions to Dismiss with annexed Exhibits A-I, Defendant's Affirmation in Opposition to Cross Motion and in Further Support of Motion to Dismiss with annexed Exhibits A-I, Claimant's Reply Affirmation, Defendant's Sur Reply in Opposition to Cross Motion and in Further Support of Motion to Dismiss and Claimant's Sur-Reply Affirmation.
Defendant, the State of New York, initially brought a motion (M-83585) pursuant to CPLR § 3211 and Court of Claims Act (CCA) § 11 seeking an order dismissing the claim. Defendant then filed a second motion (M-83728) pursuant to CPLR § 3211(a)(2) and CCA §§ 10(3) and 11(a) seeking an order dismissing the "Complaint" served on June 3, 2013. In response, claimant, Dana Littleford, has cross-moved for an order: (1) pursuant to CCA § 10(8) to permit claimant to treat the notice of intention as a claim or in the alternative (2) permitting claimant to file a late claim pursuant to CCA § 10(6) or in the alternative (3) permitting claimant to re-file his claim pursuant to CPLR 205(a). Claimant contends that all avenues of relief are available as claimant's legal disability tolls the applicable statute of limitations.
The claim in this matter was mistitled a "complaint."
The underlying claim in this matter states that on May 24, 2010 claimant was admitted to the Comprehensive Psychiatric Emergency Program (CPEP) unit located within defendant's hospital, Stony Brook University Medical Center (Stony Brook). Claimant sought professional care at Stony Brook due to his suicidal ideation and certain psychological and physical complaints. The claim concerns the allegedly negligent actions by defendant in failing to keep claimant safe while he was a patient in the CPEP. Claimant contends, inter alia, that defendant failed to properly assess another patient (hereinafter referred to as the assailant) in CPEP, failed to supervise the assailant, a known violent patient and failed to intervene when the assailant assaulted claimant and caused claimant to sustain serious injuries. Claimant suffered multiple facial fractures and soft tissue swelling. Claimant was treated at Stony Brook where he received stitches and underwent surgery to rebuild the his facial bones as a result of the assault.
Procedurally claimant served a notice of intention upon the Attorney General's Office on July 23, 2010 by certified mail, return receipt requested. Thereafter, claimant served the claim upon the Office of the Attorney General by facsimile on November 17, 2011. Claimant personally served the claim on Stony Brook on December 12, 2011. On December 21, 2011 defendant interposed an answer in which it raised improper service as its eleventh affirmative defense. On June 3, 2013, claimant served on the Office of the Attorney General by certified mail, return receipt requested, a copy of the claim which was originally faxed to it on November 17, 2011.
Defendant seeks dismissal of the claim filed on November 17, 2011 as it was served on the Office of the Attorney General by facsimile and not by one of the methods authorized by CCA §11(a)(i). Claimant concedes that the claim was served on the Attorney General's Office by facsimile.
CCA §11(a)(i) provides in pertinent part that a copy of the claim "shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court."
The Court of Appeals has long held that "suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law [and because of this] statutory requirements conditioning suit must be strictly construed" (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). "[N]othing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary" (Kolnacki v State of New York, 8 NY3d 277, 281 [2007]). Accordingly, claimants who have not met the service requirements of the Court of Claims Act have not properly commenced their actions (Lichtenstein v State of New York, 93 NY2d 911 [1999]; Weaver v State of New York, 82 AD3d 878 [2d Dept 2011]). Therefore, the Court is constrained to dismiss the claim.
Defendant also seeks dismissal of the claim on the grounds that the claim which was served upon the Attorney General's Office by certified mail, return receipt requested on June 3, 2013 was served outside the relevant statute of limitations period.
Claimant does not clearly explain what he intended to accomplish by serving the June 3, 2013 claim. A corresponding claim was not filed with the Court at that time.
Assuming that claimant was attempting to re-serve the original claim in a manner authorized by CCA § 11(a)(i) it must fail as it was served outside the applicable limitations period contained within CCA § 10(3). CCA § 10(3) provides that in a situation where a notice of intention has been served on the attorney general, the claim shall be filed and served upon the attorney general within two years after the accrual of such claim. The June 3, 2013 claim was served well after the two year time period expired. Claimant's failure to strictly comply with the statutory requirements set forth in Court of Claims Act § 10(3) deprives this Court of jurisdiction over the claim (Lepkowski v State of New York, 1 NY3d 201 [2003]).
Claimant requests various forms of relief in his cross motion all premised on his assertion that he is under a legally disability pursuant to CCA § 10(5).
CCA § 10(5) provides that if a claimant shall be under a legal disability, the claim may be presented within two years after such disability is removed. Claimant argues that his mental condition qualifies as a legal disability under the statute and thus the various forms of relief requested are available to him. Claimant puts forth the affidavit of James C. Beck, Md. PhD. in support of this argument.
However, CCA § 10(5) does not provide for the extension of time to file a late claim or to convert a notice of intention into a claim. It merely provides a claimant under a legal disability to present his claim within two years after the disability has been removed.
Although claimant did not request the appointment of a guardian ad litem, the Court, sua sponte, must consider its necessity in this matter as an incompetent individual may not appear in an action on his own behalf without a guardian (see CPLR 1201).
The legal disability for "insanity" (see CPLR 208) applies to only those individuals who are unable to protect their legal rights because of an overall inability to function in society and should be narrowly interpreted (McCarthy v Volkswagon of Am., 55 NY2d 543 [1982]; Thompson v Metropolitan Transp. Auth., 112 AD3d 912 [2d Dept 2013]). Applying the McCarthy rule the task is a pragmatic one which necessarily involves consideration of all the surrounding facts and circumstances relevant to the claimant's ability to safeguard his legal rights (Matter of Cerami v City of Rochester School Dist., 82 NY2d 809 [1993]).
Dr. Beck's affidavit does not establish claimant's prima facie burden of showing that for the time period in question he was unable to protect his legal rights due to an overall inability to function in society. Dr. Beck never examined claimant but relied on a limited portion of medical records provided to him in making his assessment of claimant. Notably, there is a two-year gap from June 2010 to July 2012 between the Pennsylvania Hospital record and the record of Nancy L. Sajben, M.D. he reviewed.
In contrast, the fact that claimant was able to retain an attorney and assist in the preparation of a notice of intention, a verified claim and a response to a demand for a bill of particulars by providing pertinent underlying information indicates that he was not mentally incapacitated during that time period (Thompson v Metropolitan Transp. Auth., 112 AD3d 912 [2d Dept 2013]). This is not a situation where a parent, guardian or legal representative has initiated an action on behalf of claimant which might necessitate a finding that the tolling period was not terminated by their actions (see Henry v City of New York, 94 NY2d 275 [1999]; Montepiedra v Hon, 93 AD3d 770 [2d Dept 2012]; Costello v North Shore Univ. Hosp. Ctr. for Extended Care & Rehabilitation, 273 AD2d 190 [2d Dept 2000]). In Henry the initial action was brought on behalf of an infant, in Costello the action was brought by the plaintiff's son, a de facto guardian ad litem, and in Montepiedra the court found that the earlier action was, in actuality, brought by a parent.
In the present action there has been no showing that the action was in actuality brought by someone acting on behalf of claimant. The plain facts are that the action was initially brought by claimant on his own behalf and then claimant re-served the verified claim again on his own behalf upon defendant on June 3, 2013. In addition to the legal documents filed, claimant had the ability to sit through an extensive examination before trial in this matter. The responses by claimant to the questions posed at the deposition further demonstrated claimant's ability to understand the significance of the proceedings and his ability to safeguard his legal rights. Claimant has shown the ability to live on his own and make significant medical decisions for himself during the time period in question. Thus the Court finds that a guardian ad litem is not required in this matter (Matter of Barbara Anne B., 51 AD3d 1018 [2d Dept 2008]). This decision is made without prejudice to claimant's ability to seek relief pursuant to Article 81 of the Mental Hygiene Law.
Lastly, as the claim is dismissed for a failure to obtain jurisdiction over the defendant, CPLR § 205(a) cannot be used as a means to commence a new action.
Therefore, for the foregoing reasons, defendant's motions to dismiss are granted and claimant's cross motion is denied.
March 13, 2014
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims