Opinion
# 2011-029-043 Claim No. 115673 Motion No. M-79252
11-28-2011
MASON v. THE STATE OF NEW YORK
Synopsis
Claim arising out of attempted suicide of Bedford Hills prison inmate is dismissed for lack of jurisdiction with the court finding that claimant was not under a disability when the claim accrued and that the claim was therefore late. Case information
UID: 2011-029-043 Claimant(s): ANGELA MASON Claimant short name: MASON Footnote (claimant name) : Claimant's name is fictitious. Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 115673 Motion number(s): M-79252 Cross-motion number(s): Judge: STEPHEN J. MIGNANO Claimant's attorney: JAY M. WEINSTEIN, ESQ. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL Defendant's attorney: By: Vincent M. Cascio, Assistant Attorney General Third-party defendant's attorney: Signature date: November 28, 2011 City: White Plains Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
After completion of disclosure and filing of a note of issue, defendant moves for summary judgment dismissing the claim for lack of jurisdiction arising from claimant's alleged failure to comply with the time requirements set forth in the Court of Claims Act.
The claim arises from a September 11, 2004 incident in which claimant, at the time an inmate at Bedford Hills Correctional Facility, attempted suicide. The basis of the claim is the alleged negligence of defendant's employees at Bedford Hills in failing to provide adequate and proper mental health care to prevent the suicide attempt. The claim was filed on August 11, 2008 and served on September 17, 2008, four years after accrual and well beyond the 90-day limitations period set forth in Court of Claims Act section 10(3). Defendant's motion for summary judgment is based on its sixth affirmative defense, contending that the court lacks jurisdiction due to claimant's failure to serve and file the claim within that statutory period. In response, claimant contends the claim is timely under the ameliorative provision of Court of Claims Act section 10(5), which provides a toll for persons under legal disability at the time a claim accrues and specifically, as it relates to defendant's summary judgment motion, that there is at least a genuinely contested issue of fact whether section 10(5) applies, without which the claim is clearly untimely.
The issue was raised previously in defendant's pre-answer motion to dismiss the claim on the same ground. The court denied the motion at that time, noting: "Nevertheless, since the probative evidence before the court is insufficient to determine whether § 10(5) applies - i.e., whether claimant was under a legal disability on September 11, 2004 and whether the claim was served and filed within two years after the removal of such disability - defendant is free to raise the jurisdictional defense in its answer and revisit the issue with a proper evidentiary foundation" (Decision and Order dated March 6, 2009, UID No. 2009-029-008).
The court's intent was that disclosure would be undertaken and completed, which has occurred, and the respective parties would then be in a position to submit whatever relevant evidence exists in support of their respective positions as to the jurisdictional posture of the claim.
In support of its contention that the claim was late and that claimant was not under a legal disability when the claim accrued, defendant has submitted transcripts of the depositions of claimant, her treating psychologist and a correction officer from Bedford Hills, claimant's medical/psychiatric records from January 2004 through 2009 and an affirmation from a physician. Claimant opposes the motion with an affirmation of counsel.
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After setting forth the time requirements for filing claims in paragraphs (1) through (4), paragraph (5) of Court of Claims Act section 10 provides: "If the claimant shall be under legal disability, the claim may be presented within two years after such disability is removed." The term "legal disability" is not defined in the Court of Claims Act and it is necessary to look to the CPLR, specifically CPLR 208, for explication. That section provides a toll of otherwise applicable CPLR Article 2 statutes of limitations in the case of "a person entitled to commence an action [who is] under a disability because of infancy or insanity at the time the cause of action accrues" (see generally Boland v State of New York, 30 NY2d 337; Bowles v State of New York, 208 AD2d 440; Barrett v State of New York, 161 AD2d 61). Claimant contends that she was under the disability of insanity at the time the claim accrued and further contends that the disability has not been removed and that, at least through the filing of the claim, claimant continued to be disabled.
" [Claimant] was under a disability at the time of the incident and she remains under that same disability to date" (Claim, par. 7).
In McCarthy v Volkswagen of America (55 NY2d 543), the Court of Appeals examined the nature of the insanity toll, noting that the term is not defined by statute. The court observed that the history of the statute leads to the conclusion that the Legislature intended that the toll be "narrowly interpreted," since it was specifically decided not to provide a toll for persons with "mental illness," something that "might result in unwarranted extensions of time," and instead the more restrictive term "insanity" was used (55 NY2d 543, 548). Rather than provide a toll for persons afflicted with "mental illness," "the Legislature meant to extend the toll for insanity to only those individuals who are unable to protect their legal rights because of an over-all inability to function in society" (id., emphasis supplied).
In McCarthy, Special Term had denied defendant's dismissal motion after a hearing on the CPLR 208 issue that included testimony from a psychiatrist in support of the plaintiff, the Appellate Division reversed and granted the motion and the Court of Appeals affirmed the dismissal as a matter of law, based on the hearing record.
Decisions addressing the insanity toll and applying the McCarthy analysis - whether finding that the toll applies or that it does not - generally center around the distinction between mental illness and what is required to establish an overall inability to function in society. For example, in Graboi v Kibel (432 F Supp 572, 579 [USDC SDNY, 1977]), the toll was found not to apply despite the court noting that there was little question that the plaintiff suffered from mental illness, a conclusion based on unrebutted medical testimony that plaintiff suffered from schizophrenia. And in Dumas v Agency for Child Development - New York City Head Start (569 F Supp 831 [USDC SDNY, 1983]), a psychiatric diagnosis of "schizophrenia, paranoid, chronic with acute exacerbation DSM III 295.34" was insufficient for application of the insanity toll in view of the other submitted evidence of the plaintiff's functional level, with the court finding that "it is apparent that the disability, while causing her serious problems at times, was not of the severe and incapacitating nature contemplated by the tolling statute" (569 F Supp 831, 833).
Plaintiff's psychiatrist testified at a hearing on defendant's dismissal motion that plaintiff suffered from schizophrenia coupled on occasion with paranoid delusions and the court concluded that she "was of a borderline schizophrenic state which tended to interfere with and shadow her behavior, but which only occasionally erupted in a true psychotic state, so that she was incapable of pursuing her lawful rights" (432 F Supp 572, 580).
Both the Graboi and Dumas decisions emphasize that for the statutory toll to apply, the court must find that the "severe and incapacitating" disability must not only exist on the date of accrual but must be continuous: "In other words, if the plaintiff had a lucid interval of significant duration, preceded and followed by a period of insanity, the toll is lost and is not resurrected when a plaintiff relapses into insanity" (Graboi v Kibel, 432 F Supp 572, 579). Here, the claim accrued on September 11, 2004 and was served on September 17, 2008. Thus, what is required to sustain this court's jurisdiction is proof claimant was insane within the meaning of the statute - that she suffered from severe and incapacitating mental illness rendering her unable to function - on the former date and remained so at least through September 17, 2006; i.e., proof that the claim was "presented within two years after [her] disability is removed" (Court of Claims Act §10[5]).
Dumas: "it is apparent that the disability, while causing [plaintiff] serious problems at times, was not of the severe and incapacitating nature contemplated by the tolling statute. The statute speaks in terms of insanity, not merely mental illness, a distinction whose importance the Court of Appeals noted in McCarthy, supra" (569 F Supp 831, 833).
Cases in which the insanity toll was held to apply are illustrative on the nature and quantum of proof required. In Barnes v County of Onondaga (103 AD2d 624), the toll was found to apply to a plaintiff (a mother who was rendered quadriplegic in a car accident that killed her 10-day old daughter and severely injured her 3-year old son) based on unrebutted testimony that she suffered from disabling post-traumatic stress disorder, from which the court concluded that the McCarthy standard had been met. In Cairl v County of Westchester (150 AD2d 749), "the uncontradicted testimony of the injured plaintiff's psychiatrist, that from the time her cause of action accrued until she filed her notice of claim she suffered from paranoid schizophrenia and borderline personality disorder with symptoms of hallucinations and impulsive suicidal behavior necessitating frequent and multiple hospitalizations, constant medications and psychotherapy" was sufficient for the court to find that plaintiff had an overall inability to function in society and was entitled to the toll. And in Bowles v State of New York (208 AD2d 440), judicial findings that the plaintiff was mentally retarded and suffering from a serious mental disorder, leading to his commitment and recommitment to a State facility, combined with his psychiatric records, demonstrated that plaintiff was entitled to the toll, with the court noting that the commitment to a State facility estopped the State from attempting to avoid application of Court of Claims Act section 10(5).
Here, in support of its dismissal motion defendant relies on the deposition testimony of Elizabeth Roach, claimant's treating psychologist at Bedford Hills as well as an affirmation from a psychiatrist whose opinion was based on analysis of claimant's records. Roach, who treated claimant during the period in question, testified that she was unaware that claimant had attempted suicide in 1999, 2000 and 2001 but that such knowledge would have been irrelevant to her treatment plan because in 2004 "she was relatively stable. She was functioning as best she could out in general population" (Exhibit G, p 30). Roach recalled discussing self-injurious behavior with claimant August 2004 and that such behavior was connected with disciplinary tickets she had received alleging facility rules violations. Although claimant's records indicated that she was receiving two psychotropic medications during 2004 - Seroquel and Celexa - Roach's opinion was that claimant was not mentally incapacitated or incompetent: "I have never found [claimant] to be incompetent at all. Although she was not strong academically, she was very streetwise, very, you know - I hate to use the word manipulative but she had very strong, effective, negotiating skills" (id., p 50-51).
The psychiatrist - Dr. Barry Perlman - reviewed claimant's records and noted that although claimant has suffered through periods of mental illness, he found no instance where she was deemed "mentally incapacitated" (Exhibit H). He also noted that she has never found to be incompetent, at least during the period relevant to this case.
Based on the foregoing, defendant has satisfied its initial burden of proof on the jurisdictional issue, establishing its defense that the claim was served and filed beyond the 90-day period required by Court of Claims Act section 10(3) by prima facie admissible evidence (Waters of Saratoga Springs v State of New York, 116 AD2d 875, affd 68 NY2d 777).Thus, claimant "was left to tender 'evidentiary proof in admissible form' (Zuckerman v City of New York, 49 NY2d 557, 562) demonstrating the existence of a triable issue of fact that [s]he suffered from such mental disability sufficient to toll the limitations period (see, Waters of Saratoga Springs v State of New York [supra]; Anonymous v Anonymous, 154 Misc 2d 46)." (Lynch v Carlozzi, 284 AD2d 865, 868).
"where, as here, the State has presented prima facie proof that the Statute of Limitations had expired before the commencement of the action, it is incumbent upon claimant to produce evidentiary proof showing that the limitation period was tolled" (116 AD2d 875).
As noted, claimant's opposition to the motion consists entirely of an affirmation from counsel in which he points out that claimant was found to be mentally ill and confined to Central New York Psychiatric Center pursuant to the order of the Supreme Court, Oneida County, dated August 9, 2001, states that the order has never been "reversed, vacated or modified," and references various episodes arising at various times during claimant's confinement at Bedford Hills in support of his contention that "claimant has never been competent" (Affirmation in Opposition pars. 6, 3).
Although a judicial commitment to a psychiatric facility is in and of itself sufficient to overcome any presumption that a claimant is competent and estop the State from disputing the application of section 10(5) (Boland v State of New York, 30 NY2d 337; Bowles v State of New York, 208 AD2d 440), such a commitment does not confer, as seemingly argued by counsel, a lifetime exemption from statutes of limitations. The order of confinement relied on by claimant to sustain the court's jurisdiction over this case was dated August 9, 2001, and provided by its very terms that it was effective for a period not to exceed six months. Subsequently, claimant was returned to general population at Bedford Hills. If the claimant's mental status during the period in 2001-2002 when she was confined to the psychiatric facility was the issue in this case, the August 2001 order would be dispositive. It has absolutely no bearing on the question of whether claimant suffered from the disability of insanity in September 2004 and for a continuous period of two years thereafter.
Counsel argues that claimant's history at Bedford Hills demonstrates that she is mentally ill, giving as examples the fact that she used a false name at the prison, that she suffers from paranoia, that she was prescribed psychiatric medications at different times, that she believes she was keeplocked for no reason, that she would sometimes scream out her window into the yard, that she suffers from anxiety, hallucinations and suicidal thoughts, that in 2000 she punched a wall, that she views herself as having frequent psychiatric problems and that she has on various occasions been diagnosed with bipolar disorder, borderline personality disorder, substance abuse, depression and anti-social personality disorder. Counsel maintains that "at worst that a question of fact exists as to whether [claimant] was ever mentally competent at any time during her period of incarceration" (Affirmation in Opposition, par. 10). While these episodic references support what defendant does not dispute - that claimant has a long history of psychiatric difficulties for which she has received treatment over the years - they do not indicate that claimant, at the time of accrual of the claim and thereafter, suffered from a disabling psychosis implicating the disability toll of CPLR 208 and Court of Claims Act section 10(5).
More to the point are the entries of health care professionals in claimant's treatment records for the period around and after the subject suicide attempt. On her admission to an observation cell on September 11, 2004 after being sutured, claimant was noted to be calm but depressed, "verbalizing anger at CO's for keep-lock status, pt cooperative and agreeable to [her treatment] regime" (Exhibit I, p 117). The next day, a doctor was called because she was threatening to pull out her sutures. The doctor wrote that the danger of such behavior was discussed and claimant was calmed without medication (id.). The day after, the same doctor wrote that claimant was alert and oriented, "crying but no psychosis noted. No further threats of self harm" (id.). Similar notations were made the next two days, no further threats of self-injurious behavior and no signs of depression or psychosis (id., p 118). In a September 16, 2004 note, the clinician wrote that a "behavior analysis" was done connecting the suicide attempt to disciplinary charges filed against claimant for refusing an order and cursing and threatening an officer, one of many references in claimant's records to her self-injurious behavior being connected with confinement to keeplock or special housing or denial of parole (id.). On October 4, 2004, the clinician wrote that claimant had a long history of self abusive behavior, "but is also usually able to advocate for herself, albeit with distorted judgment" (id., p 26). An October 15 entry notes "mood is generally stable. Talkative but appropriate . . . no psychosis . . . No complaints of acute mental health symptoms or distress" (id., p 28).
Entries made in 2004 (e.g., December 2004, id., p 130) and throughout 2005, while reflecting continued psychiatric treatment, as well as continued but sporadic behavior problems within the prison, consistently note the absence of symptoms of psychosis. For example, an October 28, 2004 "post-adjustment 30-day review" noted that claimant was calm, laughed appropriately and denied self-injurious intent (id., pp 31-32). Other notations, much less frequent, noted "intermittent psychosis" (id., p 31, 10/17/04) but there are dozens of references, throughout 2005 and 2006, to the lack of any indication of psychosis, to claimant doing well with her treatment, to the lack of further self-injurious behavior or intent, interspersed with less frequent descriptions of anger or disruptive behavior, always connected with frustration at claimant's disciplinary situation in the facility or her parole status.
Rather than indicating someone unable to function in society and unable to protect their rights, claimant's records for the relevant period indicate someone making a conscious effort to overcome her psychological challenges, with success. On March 24, 2005, Dr. Roach wrote that claimant "denies intent for self-injurious behavior 'that's not my M.O. anymore' " (id., p 37). On May 18, 2005, Dr. Roach wrote that claimant "discussed how happy she is that her family is back in her life but wonders if that is because of her lawsuit and possible financial settlement" (id., p 42).On October 18, 2005, Dr. Roach wrote that claimant was "future oriented in discussing lawsuit and money she'd win for her future" (id., p 64). On November 18, 2005, a different clinician wrote that claimant was "proud that she has not engaged in self-injury for over a year. Future-oriented" (id., 57). These references are illustrative and typical, not exhaustive.
There is no indication if the reference to the lawsuit means this claim, which had not yet been commenced.
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Claimant - having eschewed the submission of medical or psychiatric evidence other than the raw treatment records and having elected not to put before the court an affidavit from either a treating physician or clinician or an expert witness - asks this court to conclude that she has satisfied her burden to establish that she was under the disability of insanity in September 2004 and for two years thereafter, something that courts, in accord with the legislative intent, have narrowly interpreted on a consistent basis, based solely on its own evaluation of her records, and the deposition testimony. The records and testimony indicate that claimant suffered from psychiatric and behavioral issues during the relevant time period. They do not indicate someone who was in the continuous throes of a disabling psychosis, unable to function and unable to protect her rights. The court finds that defendant has satisfied its burden of demonstrating that the court lacks jurisdiction over this case by virtue of claimant's failure to comply with the time limitations of Court of Claims Act section 10(3) and that claimant has failed to submit any probative evidence indicating the existence of an issue of fact as to whether Court of Claims Act section 10(5) applies. The court finds for the foregoing reasons that it does not apply. Defendant's motion is granted and the claim is dismissed for lack of jurisdiction.
November 28, 2011
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims
Papers considered:
Notice of Motion, Affirmation and exhibits
Affirmation in Opposition
Reply Affirmation