Opinion
# 2017-040-140 Claim No. NONE Motion No. M-90720
11-02-2017
DAVID MARRERO v. THE STATE OF NEW YORK
LAW OFFICES OF PAMELA S. ROTH, ESQ., P.C. By: Pamela S. Roth, Esq. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Belinda A. Wagner, Esq., AAG
Synopsis
Motion pursuant to CCA § 10(6) for permission to file a Claim late granted in part.
Case information
| UID: | 2017-040-140 |
| Claimant(s): | DAVID MARRERO |
| Claimant short name: | MARRERO |
| 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-90720 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | LAW OFFICES OF PAMELA S. ROTH, ESQ., P.C. By: Pamela S. Roth, Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Belinda A. Wagner, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | November 2, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, the application of Movant, David Marrero, to serve and file a late claim pursuant to Court of Claims Act § 10(6), is granted in part.
Court of Claims Act § 10(6) provides only for the late filing of a Claim not a Notice of Intention to File a Claim (Holmes v State of N.Y., Rosewell Park Cancer Inst. Corp., 5 Misc 3d 446 [Ct Cl 2004]; DeHart v State of New York, 92 Misc 2d 631 [Ct Cl 1977]). While Movant's Notice of Motion seeks permission to file a late Claim, Movant has submitted a proposed "Notice of Intention to File a Claim." The Court will consider the application to be a motion for permission to serve and file a Claim late and will consider the Notice of Intention to be a proposed Claim.
The proposed Claim and the Petition of Movant, both attached to the Motion papers, allege that Movant was incarcerated at Clinton Correctional Facility (hereinafter, "Clinton") on August 27, 2015, and, at approximately 7:30 to 7:55 p.m., Movant was in the yard when he was stabbed in the neck by an unknown assailant. Following the attack, Movant was escorted from the yard to the medical unit by a correction officer (hereinafter, "CO"). Movant asserts that the CO asked him who attacked him and that he replied that he did not know. At that point, Movant was assaulted by multiple officers, sustaining serious injuries. Movant alleges: (1) that he was assaulted by the officers; (2) that the State was negligent in that the officers were negligently hired, supervised, and trained; (3) that Defendant was negligent in failing to protect Movant from the assault; (4) that Defendant failed to provide medical care and treatment;(5) that his Federal and State constitutional rights, as well as his civil rights as provided under Federal statute, were violated; and (6) the intentional and/or negligent infliction of emotional distress.
Pursuant to Court of Claims Act § 10(6), it is within the Court's discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. The proposed Claim asserts several negligence causes of action (CPLR § 214[5], a three-year Statute of Limitations). Movant asserts that the claim accrued on August 27, 2015. The Court concludes that, based upon the information provided in the proposed Claim, the statute of limitations had not yet expired as to these causes of action. As to any cause of action for constitutional tort, a three-year statute of limitations applies (CPLR § 214[5]). Thus, the Motion also appears to be timely for a cause of action asserting a violation of Movant's constitutional rights, based upon the accrual date Movant asserts. Movant also asserts a cause of action for failure to provide medical care and treatment. It is not clear if Movant is asserting negligence or medical malpractice (CPLR § 214-a), but under either theory, that cause of action is timely asserted.
Movant also asserts two intentional tort causes of action. One for assault and the other for intentional infliction of emotional distress (CPLR § 215[3], a one-year Statue of Limitations). As the alleged assault occurred on August 27, 2015, these two causes of action are untimely, and the Motion as to the assault and intentional infliction of emotional distress causes of action is denied (Arbor Hill Partners v New York State Commr. of Hous. & Community Renewal, 267 AD2d 675 [3d Dept 1999]; Marine Midland Bank v State of New York, 195 AD2d 871 [3d Dept 1993], lv denied 82 NY2d 661 [1993]). In addition, claims of intentional infliction of emotional distress against governmental bodies are barred as a matter of public policy (Augat v State of New York, 244 AD2d 835, 837 [3d Dept 1997], lv denied 91 NY2d 814 [1998]; Brown v State of New York, 125 AD2d 750, 752 [3d Dept 1986], lv dismissed 70 NY2d 747 [1987]).
Next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]). However, the burden rests with Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
The first factor to be considered is whether the delay in filing the claim was excusable. Movant asserts that he did not timely file the Claim because of the injuries sustained in the alleged assault, the medical treatment he was receiving, including months of physical therapy and the fact he was wheelchair bound (Petition, ¶¶ 11, 12). The excuse for failing to timely file must relate to the initial 90-day period (see Bloom v State of New York, 5 AD2d 930 [3d Dept 1958]). Here, the 90-day period expired November 25, 2015. However, Movant has submitted neither a physician's affidavit nor hospital records to establish the length of time of his alleged incapacity (Cabral v State of New York, 149 AD2d 453 [2d Dept 1989]; Goldstein v State of New York, 75 AD2d 613 [2d Dept 1980]; Rios v State of New York, 67 AD2d 744 [3d Dept 1979]). There is no indication why he could not contact counsel and serve a notice of intention to file a claim prior to expiration of the statutory period. The Court notes that Movant asserts he was able to file an inmate grievance dated September 8, 2015 regarding the alleged assault (Petition, ¶ 10 and unnumbered Exhibit attached to Motion). However, the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., supra at 981).
The next three factors to be addressed - whether Defendant had notice of the essential facts constituting the claim, whether Defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant - are interrelated and will be considered together. Movant concedes that Defendant did not have an opportunity to investigate the circumstances underlying the claim (Affirmation of Pamela S. Roth, Esq., ¶ 6[c]). However, Defendant does not argue lack of notice of the essential facts, or that it will be substantially prejudiced by a delay in filing a claim (see Affirmation in Opposition of Belinda A. Wagner, Esq., Assistant Attorney General). Those factors, therefore, weigh in Movant's favor.
The fifth factor to be considered is whether Movant has another remedy available. It appears that Movant does have a possible alternate remedy against the alleged assailants.
The sixth, final, and perhaps most important factor to be considered is whether the proposed Claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], lv granted 16 NY3d 703 [2011], affd sub nom. Donald v State of New York, 17 NY3d 389 [2011], quoting Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]). It is Movant's burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., supra at 11-12).
At this stage of the proceeding, it should be noted the Court generally takes as true factual allegations of Movant. Based upon the entire record, including the proposed Claim, the Court finds that the proposed Claim relating to the negligence causes of action asserting improper hiring, supervision, and training, and that Defendant was negligent in failing to protect Movant from the assault of the correction officers, have the appearance of merit. Movant need only establish the appearance of merit; he need not prove a prima facie case at this stage of the proceedings.
The Court now turns to the proposed cause of action alleging improper medical care and treatment. "It is fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons" (Rivers v State of New York, 159 AD2d 788, 789 [3d Dept 1990], lv denied 76 NY2d 701 [1990]. In order to maintain an action for injuries sustained while under the care and control of a medical practitioner and/or medical facility, "a party may proceed upon a theory of simple negligence, or upon the more particularized theory of medical malpractice" (Hale v State of New York, 53 AD2d 1025 [4th Dept 1976], appeal denied 40 NY2d 804 [1976]). "The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by [laypersons], or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts" (Miller v Albany Med. Ctr. Hosp., 95 AD2d 977, 978 [3d Dept 1983]; see Twitchell v MacKay, 78 AD2d 125, 127 [4th Dept 1980]).
To the extent the proposed cause of action alleges medical malpractice, the merit of the claim must be patently revealed by medical records or supported by an expert affidavit (see Matter of Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006]; Matter of Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002]; Rosario v State of New York, 8 Misc 3d 1007[A] [Ct Cl 2005]; Vespucci v State of New York, UID No. 2007-038-505 [Ct Cl, DeBow, J., Feb. 16, 2007]; Jackson v State of New York, UID No. 2007-029-001 [Ct Cl, Mignano, J., Jan. 10, 2007]). The proposed Claim alleges negligent acts relating to Movant's medical treatment, however, it is not clear if Movant is referring to treatment at Clinton or at a hospital outside the prison. Movant has not submitted either his medical records, or an expert affidavit stating that Defendant's actions departed from the accepted standard of care (see Matter of Robinson v State of New York, supra at 950; Rosario v State of New York, supra). In the absence of Movant's medical records at Clinton, the merit of any allegations of medical malpractice in his motion papers is not established. Further, in the absence of an expert affidavit, there is no support for his contention that Defendant committed medical malpractice, or that such alleged malfeasance or nonfeasance caused injury to him (see Schreck v State of New York, 81 AD2d 882 [2d Dept 1981]). With respect to any medical negligence cause of action, Movant has not provided sufficient facts for the Court to determine if any such actions are within the usual experience and knowledge possessed by laypersons (see Matter of Perez v State of New York, supra at 919).
Movant also asserts a constitutional tort cause of action based on violations of his Federal constitutional rights. No action may be maintained in this Court against the State for alleged Federal constitutional violations (Shelton v New York State Liquor Auth., 61 AD3d 1145, 1151 [3d Dept 2009]; Lyles v State of New York, 194 Misc 2d 32, 35-36 [Ct Cl 2002], affd 2 AD3d 694, 696 [2d Dept 2003], affd on other grounds 3 NY3d 396 [2004]; Matter of Thomas v New York Temporary State Comm. on Regulation of Lobbying, 83 AD2d 723 [3d Dept 1981], affd 56 NY2d 656 [1982]). To the extent that Movant asserts Federal constitutional violations, his remedy lies elsewhere. Similarly, any cause of action Movant asserts against the State pursuant to 42 USC § 1983 must be dismissed since the State is not a "person" under the statute and the Court of Claims, therefore, lacks jurisdiction over such claims (Brown v State of New York, 89 NY2d 172, 185 [1996]; Blake v State of New York, 145 AD2d 1336, 1337 [3d Dept 2016], lv denied 29 NY3d 908 [2017]; Flemming v State of New York, 120 AD3d 848 [3d Dept 2014]; Shelton v New York State Liq. Auth., supra at 1148-1149; Walker v State of New York, UID No. 2017-015-242 [Ct Cl, Collins, J., June 21, 2017]). As this Court has no jurisdiction over these causes of action, the Court concludes that Movant has failed to establish that they have the appearance of merit.
In Brown v State of New York (89 NY2d 172 [1996]), the Court of Appeals "recognized that, when certain requirements are met, a violation of the [New York State] Constitution may give rise to a private cause of action" (Waxter v State of New York, 33 AD3d 1180, 1181 [3d Dept 2006]; see Wagoner v State of New York, UID No. 2008-029-014 [Ct Cl, Mignano, J., Apr. 2, 2008]). In Martinez v City of Schenectady (97 NY2d 78 [2001]), however, the Court of Appeals made it clear that Brown establishes a "narrow remedy," applicable in cases where no other remedy is feasible to provide citizens with "an avenue of redress" when their private interests have been harmed by constitutional violations (Martinez v City of Schenectady, supra at 83; Waxter v State of New York, supra at 1181). Where an adequate remedy could be provided, however, " 'a constitutional tort claim … is [not] necessary to effectuate the purposes of the State constitutional protections … [invoked] nor appropriate to ensure full realization of [claimants'] rights' " (Bullard v State of New York, 307 AD2d 676, 679 [3d Dept 2003], quoting Martinez v City of Schenectady, supra at 83).
In the present case, recognition of the State constitutional cause of action is neither necessary nor appropriate to ensure the full realization of Movant's rights, because the alleged wrongs can be redressed by an alternative remedy, namely, either in a Federal Court action asserting violations of the Federal Constitution, or in action for negligence as set forth above. In this instance, Movant has failed to establish that no other cause of action is available as an avenue of redress. Thus, the Court determines that Movant has failed to establish that this cause of action has merit.
Turning to Movant's allegation of negligent infliction of emotional distress. This cause of action is duplicative of other causes of action and cannot be maintained (Afifi v City of New York, 104 AD3d 712 [2d Dept 2013]; Espino v State of New York, UID No. 2016-045-051 [Ct Cl, Lopez-Summa, J., Oct. 6, 2016]).
Movant's proposed Claim also includes a hodgepodge of causes of action, seemingly thrown into the document haphazardly, including one for loss of companionship, society and services, which as Defendant notes, is a derivative action, usually brought by a parent or spouse. However, the only Movant is Mr. Marrero. Any cause of action asserted in the proposed Claim and not specifically addressed above is denied based upon the failure to establish that such cause of action has the appearance of merit.
In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in Movant's favor as to two causes of action only. The mix of circumstances presented by this case fall well within the remedial purposes of the amendments to the Court of Claims Act enacted in 1976 (L 1976, ch 280), which was designed to vest in the Court of Claims broader discretion than previously existed to permit late filing, indicated a strong concern that litigants with meritorious claims be afforded their day in court (Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, supra at 1036). Movant has provided ample basis for a favorable exercise of this Court's discretion to grant him leave to file a late claim against the State as set forth above asserting causes of action regarding improper hiring, supervision, and training, and that Defendant was negligent in failing to protect Movant from the assault of the correction officers. Therefore, within forty-five (45) days of the date of filing of this Decision and Order, Movant shall file with the office of the Clerk of the Court his proposed Claim only with respect to those two causes of action, as set forth above, against the State of New York and serve a copy of the proposed Claim upon the Attorney General personally or by certified mail, return receipt requested. In serving and filing his Claim, Movant is directed to follow all of the requirements of the Court of Claims Act, including § 11-a, regarding the filing fee, and the Uniform Rules for the Court of Claims.
November 2, 2017
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered on Movant's application for permission to file a late claim: Papers Numbered Notice of Motion, Affirmation, & Exhibits Attached 1 Affirmation in Opposition 2