Opinion
# 2015-047-127 Claim No. 124295 Motion No. M-86602 Cross-Motion No. CM- 87470
12-03-2015
JUNIOR NERVIL and SANDRA NOEL v. THE STATE OF NEW YORK
The Law Offices of Marjory Cajoux By: Marjory Cajoux, Esq. Eric T. Schneiderman, Attorney General of the State of New York By: Bridget E. Farrell, AAG
Synopsis
Claimants allege negligence by SUNY Downstate Medical Center in the diagnosis and treatment of Noel during her pregnancy and labor, and allege the hospital disposed of the remains of their stillborn child without claimants' permission. The State of New York filed a motion to (1) dismiss the Claim in its entirety on the ground that the claimants failed to produce court-ordered discovery; (2) dismiss the claims of claimant Nervil, for lack of standing; and (3) dismiss the Claim as far as it seeks punitive damages, as this court lacks jurisdiction to grant such damages against the State. Claimants opposed and cross-moved to compel the production of certain documents and to either strike the State's answer or grant claimants summary judgment based on the State's alleged spoliation of evidence.
The State's motion to dismiss the Claim in its entirety was denied and additional instructions for discovery were provided. The State's motion to dismiss claimant Nervil was also denied, as affidavits provided sufficient allegations to support his claim at this stage. The State's motion to dismiss the portion of the Claim seeking punitive damages was granted, as such relief was not available. The claimants' cross-motion to compel production was granted, but as far as the cross-motion sought summary judgment, or the striking of the State's Answer, the cross-motion was denied.
Case information
| UID: | 2015-047-127 |
| Claimant(s): | JUNIOR NERVIL and SANDRA NOEL |
| Claimant short name: | NERVIL/NOEL |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124295 |
| Motion number(s): | M-86602 |
| Cross-motion number(s): | CM- 87470 |
| Judge: | O. PETER SHERWOOD |
| Claimant's attorney: | The Law Offices of Marjory Cajoux By: Marjory Cajoux, Esq. |
| Defendant's attorney: | Eric T. Schneiderman, Attorney General of the State of New York By: Bridget E. Farrell, AAG |
| Third-party defendant's attorney: | |
| Signature date: | December 3, 2015 |
| City: | New York |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimants Sandra Noel and Junior Nervil filed the instant Claim on May 1, 2014. On June 9, 2015, the defendant, the State of New York, filed a motion to (1) dismiss the Claim in its entirety on the ground that the claimants failed to produce court-ordered discovery; (2) dismiss the claims of claimant Nervil, for lack of standing; and (3) dismiss the Claim as far as it seeks punitive damages, as this court lacks jurisdiction to grant such damages against the State (M-86602). Claimants opposed the motion and cross-moved to compel the production of certain documents and to either strike the State's answer or grant claimants summary judgment based on the State's alleged spoliation of evidence (CM-87470).
In connection with this motion, the court read and considered the Verified Claim (NYSCEF Doc. No. 1), the Verified Answer (NYSCEF Doc. No. 4), the Notice of Motion (NYSCEF Doc. No. 13), the Affirmation in Support of Motion (NYSCEF Doc. No. 14), the Affirmation in Opposition (NYSCEF Doc. No. 24), the Affirmation in Reply (NYSCEF Doc. No. 45), the Notice of Cross-Motion (NYSCEF Doc. No. 37), the Affirmation in Support of Cross-Motion (NYSCEF Doc. No. 38), the Affirmation in Opposition to claimants' Cross-Motion (NYSCEF Doc. No. 50), the Attorney Reply Affirmation in further support of Plaintiff's Cross-Motion (NYSCEF Doc. No. 55) and the attachments to those documents.
The claims in this action arise out of Noel's delivery of a stillborn child on or about February 3, 2014. Claimants allege negligence by SUNY Downstate Medical Center in the diagnosis and treatment of Noel during her pregnancy and labor, and allege the hospital disposed of the remains of the stillborn child (the Remains) without claimants' permission. While the Claim makes no allegations regarding Nervil's standing or injury in this action, claimant Noel has submitted an affidavit stating that Nervil is the father of the stillborn child (Noel Aff, attached as Exhibit A to Cajoux Aff, NYSCEF Doc. No. 25, ¶¶ 3-5). Now, the State moves to dismiss the Claim, in whole or in part, on several grounds.
I. The State's Motion to Dismiss
A- Bill of Particulars
First, the State moves to dismiss the Claim in its entirety because of claimants' failure to provide a supplemental or amended bill of particulars. The State demanded a verified bill of particulars on or about June 3, 2014 (attached as Exhibit C to Farrell Aff, NYSCEF Doc. No. 17). Claimants served a verified bill of particulars on or around February 4, 2015 (attached as Exhibit D to Farrell Aff, NYSCEF Doc. No. 18). The State deemed the bill of particulars to be insufficient. The parties appeared before the court for a Preliminary Conference on February 18, 2015. The Preliminary Conference Order (NYSCEF Doc. No. 12) noted that a demand for a bill of particulars had been made on June 3, 2014, and ordered it be served on or before February 27, 2015. The State claims it has not yet received an amended bill of particulars and therefore asks the court to dismiss the Claim for claimants' failure to obey an order for disclosure pursuant to CPLR 3126. Claimants argue that the dates in the Preliminary Conference Order had been prepared by the parties prior to the Preliminary Conference, and prior to the service of the Verified Bill of Particulars. Therefore, according to claimants, the deadline in the Preliminary Conference Order referred to the document which, by that time, had already been provided, and not to an amended verified bill of particulars. Claimants do not defend the Verified Bill of Particulars as providing sufficient notice, nor do they claim they were not aware of the demand for an amended document, or had not agreed to provide it. They merely argue that they are in compliance with the Preliminary Conference Order, as it is written. As there is no clear, written, order for disclosure of an amended or supplemental verified bill of particulars, the portion of the motion seeking to dismiss the case for claimants' failure to serve that document is DENIED. Claimants are hereby ORDERED to serve an amended verified bill of particulars within 20 days of the filing of this Decision and Order.
B- Standing of Claimant Nervil
The State moves to dismiss Nervil as a claimant on the ground that no allegations are made in the claim, and no evidence has been presented, supporting Nervil's claim to standing in this action. In the Preliminary Conference Order, claimants were ordered to provide either a marriage certificate or an Order of Filiation (a court order declaring a person to be the legal father of a child). Nervil has provided neither. Accordingly, the State argues Nervil may be dismissed as a claimant for failure to comply with the discovery order, pursuant to CPLR 3126.
Claimants acknowledge that Nervil and Noel were not married, but provide an affidavit from Noel stating that Nervil was the father. Claimants' failure to provide either of the documents listed in the Preliminary Conference Order is not fatal. Claimant Nervil has now made sufficient allegations to withstand a CPLR 3211 motion to dismiss for lack of standing, as a marriage certificate or order of filiation may not be the only possible proofs. The court declines to dismiss on this ground.
C- Punitive Damages
The State asks to strike the portion of the Claim seeking punitive damages, arguing that the State may not be ordered to pay punitive damages, citing Sharapata v Town of Islip (56 NY2d 332, 334 [1982]["the waiver of sovereign immunity effected by section 8 of the Court of Claims Act does not permit punitive damages to be assessed against the State"]). Claimants do not oppose this portion of the motion. This portion of the motion is, therefore, granted and the request for punitive damages is hereby struck.
D- Right of Sepulcher Claim
In its reply, the State argues that, if claimants have claims regarding their right of sepulcher, any damages should be terminated on July 25, 2014, "the end of the week that Ms. Noel was informed that the remains were available" to be retrieved (Reply Affirmation, ¶ 9). "[T]he function of a reply affidavit is to address arguments made in opposition to the position taken by the movant" (Ritt by Ritt v Lenox Hill Hosp., 182 AD2d 560, 562 [1st Dept 1992]). As this is a new issue, raised for the first time in the reply papers, the court will not consider it at this time.
II. Claimants' Cross-Motion
A- Compel Production of Documents
Claimants seek the production of:
"1. The entire medical records of Sandra Noel
2. The Table of Contents for Policy and Procedure for disposition of body
3. The Table of Contents for Obstetrics for applicable Time Period
4. Any documents signed by Sandra Noel, authorizing the defendant to dispose of the baby's body as alleged by defendant's counsel [sic]"
(Notice of Cross-Motion, §[i]).
Claimants raised the first three issues at a court conference on November 4, 2015. An Order was subsequently entered, providing that "counsel for the claimants may view Noel's original medical records in person at SUNY Downstate Medical Center and may designate any additional pages to be copied for her" and that "the State shall provide claimants with the tables of contents for the . . . policies and procedures in effect at Downstate in 2014 for the disposition of remains of a stillborn; and [t]he policies and procedures applicable to physicians in the Department of Obstetrics at Downstate which was in effect in 2014" (Order dated November 9, 2015, NYSCEF Doc. No. 57). Those requests are therefore moot, and this cross-motion is DENIED as to those requests. As to the final request, in which claimants seek "any documents signed by Sandra Noel, authorizing the defendant to dispose of the baby's body as alleged by defendant's counsel" (Notice of Cross-Motion, §[i]). The State does not oppose this request. Accordingly, this portion of the cross-motion is GRANTED and the State is ordered to produce any such documents within 10 days of the filing of this order.
B- Striking the Defendant's Answer and Granting Summary Judgment on Liability
Claimants also cross-move to strike the State's answer or, alternatively, seek summary judgment on the issue of liability on the ground that the State has spoliated evidence (id. at ¶ 30). Claimants allege that the State "has spoliated evidence by disposing of the plaintiff's baby's body during the pendency of this litigation without the party's knowledge, notice, or consent" (id. at ¶ 31). The State argues that Claimants come seeking this remedy with unclean hands (Farrell CM Opp Aff, NYSCEF Doc. No. 50, at ¶ 3). The State also contends that claimant Noel was informed multiple times that the Remains were available to be claimed, and that she failed to take any action (id. at ¶¶ 7-10). Further, the State argues that claimant Noel gave telephonic consent for the State to dispose of the Remains (id. at ¶ 19). Whether the claimants consented is the issue at the crux of this case, so the portion of the motion seeking that the State's answer be stricken, or requesting summary judgment, is DENIED.
C- Request for Evidence of Consent
In their reply in support of their cross-motion, the claimants repeat their request that the State produce its evidence of Noel's consent to dispose of the remains (Cajoux CM Reply Aff, NYSCEF Doc. No. 55, at ¶ 9). The State has claimed that the consent was telephonic, and recorded (Farrell CM Opp Aff, ¶ 19). The State is therefore additionally ORDERED to provide the claimants with a copy of the recording.
Accordingly, the State's motion is GRANTED IN PART and DENIED IN PART. As far as the State moves to dismiss the portion of the Claim seeking punitive damages, the motion is GRANTED. As far as the State's motion seeks other relief, it is DENIED. Claimants are, however, ordered to serve an Amended Verified Bill of Particulars within 20 days of the filing of this Decision and Order.
Additionally, the claimants' cross-motion is GRANTED IN PART and DENIED IN PART. As far as claimants seek the production of any documents or recordings evidencing claimant Noel's consent, the cross-motion is GRANTED, and the State ordered to produce any such documents or recordings within 10 days of the filing of this Decision and Order. In all other respects, the cross-motion is DENIED.
December 3, 2015
New York, New York
O. PETER SHERWOOD
Judge of the Court of Claims