Opinion
# 2017-044-501 Claim No. 128291 Motion No. M-89441 Cross-Motion No. CM-89515
01-18-2017
RAMSAY-NOBLES v. THE STATE OF NEW YORK
PATTERSON, BELKNAP, WEBB & TYLER, LLP BY: Daniel M. Eisenberg, Esq., of counsel HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Joseph F. Romani, Assistant Attorney General
Synopsis
Amended claim dismissed for failure to serve, and late claim relief partially granted.
Case information
| UID: | 2017-044-501 |
| Claimant(s): | JULIA RAMSAY-NOBLES as Administratrix of the Estate of KARL TAYLOR |
| Claimant short name: | RAMSAY-NOBLES |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128291 |
| Motion number(s): | M-89441 |
| Cross-motion number(s): | CM-89515 |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | PATTERSON, BELKNAP, WEBB & TYLER, LLP BY: Daniel M. Eisenberg, Esq., of counsel |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Joseph F. Romani, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 18, 2017 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, as administratrix of the estate of Karl Taylor (Decedent), filed Claim No. 128291 (the Initial Claim) alleging wrongful death, negligence, and conscious pain and suffering on the part of Decedent. Specifically, claimant alleged that while Decedent was in the custody of the Department of Corrections and Community Supervision (DOCCS) at Sullivan Correctional Facility (Sullivan), he was physically attacked by correction officers and suffered injuries resulting in his death. Defendant State of New York (defendant) answered and asserted several affirmative defenses, including that the claim is untimely. Shortly thereafter, claimant filed an amended claim (the Amended Claim). Apparently recognizing that an issue exists with regards to the timeliness of at least portions of the Initial Claim, claimant now moves for permission to file and serve "her second, third, and fourth causes of action for negligence and conscious pain and suffering as stated in [the] Amended Claim." Defendant opposes the motion and cross-moves to dismiss the Amended Claim for failure to serve. Claimant replies and opposes the cross motion.
Notice of Motion filed October 14, 2016.
Before addressing the merits of these two motions, some factual background is necessary. On April 13, 2015, Decedent died after a physical altercation with several correction officers at Sullivan. On February 3, 2016, the Sullivan County Surrogate Court issued claimant Limited Letters of Administration. Thereafter, the Letters were amended on April 28, 2016. Claimant then served defendant with a notice of intention to file a claim on April 29, 2016.
On July 29, 2016, claimant filed the Initial Claim and served defendant with a copy on August 4, 2016. Defendant served its answer on September 2, 2016, asserting as its first affirmative defense that the claim was untimely with respect to any personal injury action for conscious pain and suffering based upon either intentional or negligent (unintentional) conduct because the claim was not filed and served within 90 days of accrual. Claimant thereafter filed the Amended Claim on September 16, 2016 and purportedly served it by mail on that same date.
The Court notes that the affidavit of service executed by Jacques Lysius indicates that he served Larry Garron, a Legal Assistant in the Attorney General's Office at 120 Broadway, New York, New York, on August 12, 2016. However, a copy of the claim attached as Exhibit A to defendant's cross motion papers indicates that it was received both in the New York City Claims Bureau and the Office of the Attorney General, Managing Clerk's Office on August 4, 2016. Accordingly, the Court will use the August 4, 2016 date.
With this background, the Court will address the timeliness of the Initial Claim. Although defendant did not specifically move to dismiss the negligence and conscious pain and suffering causes of action as untimely filed and/or served, a claimant's "[f]ailure to comply with either the filing or service provisions of the Court of Claims Act results in a lack of subject matter jurisdiction" (Tooks v State of New York, 40 AD3d 1347, 1348 [3d Dept 2007], lv denied 9 NY3d 814 [2007]). Defendant properly asserted in its Verified Answer that the claim was not timely filed and/or served with respect to a cause of action for conscious pain and suffering based upon either intentional or unintentional conduct, and thus preserved that defense pursuant to Court of Claims Act § 11 (c). The Court may therefore address this issue sua sponte (see Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 670-671 [3d Dept 1997]).
In the Initial Claim, claimant alleges that on April 13, 2015 and without provocation, Correction Officer (CO) Tucker beat Decedent with his (Tucker's) baton. Decedent grabbed the baton from Tucker and struck him with it. Claimant states that CO Witte and CO Topel responded, tackling and handcuffing Decedent. She asserts that these three officers then continued to beat Decedent even though he was restrained. Claimant also alleges that Decedent died as a result of this conduct.
Court of Claims Act § 10 (2) provides that a claim against the State for wrongful death must be filed and served, or a notice of intention served within 90 days after the appointment of a personal representative of a decedent. In any event, a claim must be filed and served within two years of a decedent's death (Court of Claims Act § 10 [2]).
Claimant was appointed administrator on February 3, 2016. In order to be timely, a claim asserting a cause of action for wrongful death must have been filed and served or a notice of intention served by May 3, 2016. In this case, claimant timely served a notice of intention on April 29, 2016 and the time in which to file and serve the claim was extended until April 13, 2017. Accordingly, the cause of action for wrongful death contained in the Initial Claim filed on July 29, 2016 and served on August 4, 2016 is timely.
There is no dispute that the notice of intention (attached as Exhibit 6 to claimant's motion papers) complied with the requirements of Court of Claims Act § 11 (b) by setting forth the time when and place where the claim arose as well as the nature of the claim.
However, the applicable provisions for a cause of action for conscious pain and suffering based on either defendant's unintentional or intentional conduct are set forth in Court of Claims Act § 10 (3) and (3-b), respectively. Both of these subsections require that either a claim be filed and served or a notice of intention be served within 90 days of the accrual of the claim. In this case, claimant concedes that the second, third, fourth and fifth causes of action asserted in the Initial Claim accrued on April 13, 2015 and are untimely. Accordingly, these four causes of action alleging conscious pain and suffering and negligence are dismissed from the Initial Claim (see Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]).
It is well-settled that Court of Claims Act § 10 (2) does not apply to an action for a decedent's pain and suffering (Kaplan v State of New York, 152 AD2d 417 [3d Dept 1989]).
Claimant's Memorandum of Law in Support of Motion at 1.
The Court will next address defendant's cross motion to dismiss the Amended Claim. Defendant argues that it never received a copy of the Amended Claim and it must therefore be dismissed. Defendant further contends that because the causes of action alleging conscious pain and suffering as well as negligence were untimely in the Initial Claim, claimant cannot simply obtain late claim relief for these causes of action and have their assertion in the Amended Claim retroactively validated.
Claimant asserts that because the Initial Claim was properly and timely served with respect to the cause of action for wrongful death, the Court obtained jurisdiction over defendant. She further argues that the amendments merely restyled some allegations and did not affect the Court's jurisdiction. Claimant also contends that the Amended Claim was properly mailed and there is a presumption that defendant received it. In any event, claimant asserts that defendant has not been prejudiced because it has received a copy of the Amended Claim as an attachment to the motion papers and can respond accordingly.
The Uniform Rules for the Court of Claims (22 NYCRR) § 206.7 (b) provides that "[p]leadings may be amended in the manner provided by CPLR 3025, except that a party may amend a pleading once without leave of court . . . within 40 days after service of a pleading responding to it." The Initial Claim in this matter was filed on July 29, 2016 and defendant timely served its answer by mailing it on September 2, 2016. Because defendant served the answer by mail, claimant had an additional five days in which to file and serve the amended claim (see CPLR 2103 [b] [2]). Therefore, claimant had until October 17, 2016 (or 45 days after September 2, 2016) in which to file and serve the Amended Claim. Accordingly, the Amended Claim was timely filed on September 16, 2016.
Claimant has provided an affidavit of service establishing that the Amended Claim was mailed to Assistant Attorney General (AAG) Joseph F. Romani at the Binghamton Regional Office of the Attorney General on September 16, 2016. In support of its cross motion to dismiss the Amended Claim, defendant has provided the affidavit of Donna E. Woodruff, a Secretary I in the Binghamton Regional Office. Woodruff states that one of her duties is to receive, record, and distribute incoming mail addressed to AAG Romani. She indicates that she records various documents, including amended claims, into the record keeping system of the Office of the Attorney General. Woodruff notes that she conducted a thorough search of the records for the Binghamton Regional Office and did not find any evidence that an amended claim pertaining to this matter was received in either the Binghamton Regional Office or in any other Office of the Attorney General. She further states that based upon her own recollection, an amended claim in this matter was not received in the Binghamton Regional Office.
Defendant has also provided an affidavit of Debra L. Mantell, a Legal Assistant II in the Albany Office of the Attorney General. Mantell states that she is familiar with the record keeping system of the Claims Bureau of the Office of the Attorney General. She indicates that she made a thorough search of the records of the Attorney General's Office, both paper and electronic files, and has not found any record that an amended claim in this matter was served upon any Office of the Attorney General.
As claimant correctly notes, it is well-settled that a properly executed affidavit "raises a presumption that a proper mailing occurred" and a mere denial of receipt is insufficient to rebut that presumption (Engel v Lichterman, 62 NY2d 943, 944 [1984]). However, in this instance, defendant has provided evidence setting forth the specific procedure for handling incoming mail addressed to AAG Romani at the Binghamton Regional Office and that the Amended Claim was not received by that office. Defendant further has set forth proof that the Amended Claim was never received in any other Office of the Attorney General. Defendant has provided sufficient evidence to rebut the presumption of proper mailing and receipt (cf. Masselli v Dime Sav. Bank of N.Y., 202 AD2d 303 [1st Dept 1994] [where "the presumption of receipt arising from mailing" was properly applied because the defendant offered only general office procedures for handling mail]). Although the Amended Claim was timely filed, it was not served upon defendant and is accordingly dismissed.
The Court notes that even if the Amended Claim had been received by defendant, all causes of action except for the wrongful death cause of action are still untimely and would be subject to dismissal in the same manner as those contained in the Initial Claim.
The Court must now address claimant's motion for late claim relief. The Court notes that claimant is seeking "permission to file claims for negligence and conscious pain and suffering" pursuant to Court of Claims Act § 10 (6). She requests that the Court exercise its discretion and specifically grant her "permission to file her second, third, and fourth causes of action for negligence and conscious pain and suffering as stated in [the] Amended Claim."
Affidavit of Daniel M. Eisenberg, Esq. sworn to Oct. 11, 2016, in Support of Motion, ¶ 2.
Claimant's Memorandum of Law in Support of Motion at 1.
Conversely, defendant contends that late claim relief cannot be used to retroactively correct the jurisdictional defect of the untimely asserted causes of action regardless of whether they are contained in the Initial Claim and/or the Amended Claim.
Claimant apparently is under the impression that late claim relief will in essence transform the second, third, and fourth causes of action asserted in the Amended Claim from untimely to timely. Although claimant's motion is inartfully drawn, she is essentially seeking permission to file and serve a separate late claim containing causes of action for conscious pain and suffering, negligent retention and supervision, and negligent failure to protect as alleged in the second, third, and fourth causes of action contained in the Amended Claim. Defendant has unfortunately not addressed the motion in this manner. Nevertheless, there is adequate information in the papers submitted and the Court will determine claimant's motion on the merits.
See Claimant's Reply Memorandum of Law in Support of Motion and in Opposition to Cross Motion at 6-7.
Claimant has not submitted a proposed claim as required by Court of Claims Act § 10 (6). However, based upon the relief specifically sought, the Court will treat the second, third, and fourth causes of action as alleged in the now-dismissed Amended Claim as the proposed claim and refer to it as such throughout the remainder of this Decision and Order. A motion seeking permission to file a late claim must be made within the statute of limitations period attributable to each underlying cause of action (Court of Claims Act § 10 [6]). The portion of the proposed claim asserting decedent's conscious pain and suffering appears to be grounded in both intentional and unintentional conduct. A cause of action based upon the use of excessive or unnecessary force is an intentional tort governed by a one-year statute of limitations (CPLR 215 [3]). This cause of action would have accrued on April 13, 2015, the date of the Decedent's death, and this motion mailed on October 11, 2016 is not timely (see Matter of Unigard Ins. Group v State of New York, 286 AD2d 58 [2d Dept 2001]). Accordingly, claimant's motion for permission to file and serve a late claim with respect to a cause of action for conscious pain and suffering based upon the use of excessive or unnecessary force is denied.
Claimant has also alleged a cause of action for conscious pain and suffering based upon defendant's negligent conduct, to wit negligent retention and negligent supervision (third cause of action), as well as its negligent failure to protect Decedent (fourth cause of action). The statute of limitations for a negligence cause of action is three years (CPLR 214 [5]). These three causes of action also accrued on April 13, 2015. Accordingly, this motion was timely made on October 11, 2016.
Claimant asserts these causes of action in the alternative, alleging that "if it is determined that [the correction officers] . . . were acting outside the scope of their employment," defendant was negligent in retaining and/or supervising them as well as in failing to protect Decedent from these officers (Amended Claim, ¶¶ 56 and 60).
Having determined that the motion is timely with respect to the causes of action based upon defendant's purported negligence, the Court turns to a consideration of the merits of the motion itself. The factors that the Court must consider under Court of Claims Act § 10 (6) in determining a motion to permit a late filing of a claim are whether:
1) the delay in filing the claim was excusable;
2) defendant had notice of the essential facts constituting the claim;
3) defendant had an opportunity to investigate the circumstances underlying the claim;
4) the claim appears to be meritorious;
5) the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to defendant; and
6) claimant has any other available remedy.
Claimant states that once she realized that she could not ascertain the circumstances of Decedent's death directly from DOCCS officials, she diligently retained counsel in October 2015. She asserts that the delay in filing a claim was justified as counsel had to undertake an investigation into Decedent's death and obtain an autopsy report in order to establish the facts of her claim. Claimant's ignorance of the requirements of the Court of Claims Act and her hesitation in retaining counsel are not adequate excuses for the delay in timely serving a notice of intention or timely filing and serving a claim (see e.g. Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]; Plate v State of New York, 92 Misc 2d 1033 [Ct Cl 1978]). Accordingly, this factor weighs against claimant.
The three factors of notice of the essential facts, an opportunity to investigate and the lack of substantial prejudice are frequently analyzed together since they involve similar considerations. Immediately after Decedent died, the State Police conducted an investigation into his death, and shortly thereafter the Sullivan County District Attorney presented the matter to a Grand Jury. An autopsy was also performed and the cause of death was listed as "cardiac arrhythmia complicating hypertensive cardiovascular disease following physical altercation with correction officers." The manner of death was listed as a homicide. It is evident that defendant had notice of the essential facts and an opportunity to investigate. Moreover, the Court discerns no prejudice to defendant in maintaining a defense to this claim. Accordingly, the three factors of notice, an opportunity to investigate, and the lack of substantial prejudice all weigh in favor of movant.
Based upon information provided in defendant's Memorandum of Law, the Grand Jury returned a No True Bill with respect to CO Tucker, CO Witte and CO Topel, determining that their actions were in self-defense. The Grand Jury also returned a No True Bill with respect to 11 other correction officers who responded after the initial use of force.
Affidavit of Daniel M. Eisenberg, Esq., sworn to Oct. 11, 2016, in Support of Motion, Exhibit 1 at 2.
Another factor to be considered is whether claimant has any other available remedy. Claimant admits that she commenced a civil rights action against the Superintendent and Deputy Superintendent as well as several named and unnamed correction officers. However, claimant argues that because the State itself cannot be sued in Federal Court, she cannot recover for negligence and wrongful death against defendant. The Court finds that claimant's pending civil rights action (pursuant to 42 USC 1983) against the individual DOCCS employees would provide her with an adequate alternate remedy. Thus, this factor weighs against claimant.
The issue of whether the proposed claim appears meritorious is the most crucial component in determining a motion under Court of Claims Act § 10 (6), since it would be futile to permit a meritless claim to proceed (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [Ct Cl 1977]). In order to establish a meritorious claim, a movant must demonstrate that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (id. at 11). There is a heavier burden on a party moving for permission to file a late claim than on a claimant who has complied with the provisions of the Court of Claims Act (see id. at 11-12; see also Nyberg v State of New York, 154 Misc 2d 199, 202-203 [Ct Cl 1992]).
In her proposed claim, claimant alleges that certain correction officers would regularly abuse, harass, and provoke Decedent, and that DOCCS supervisors as well as Office of Mental Health employees were aware of this conduct. Claimant states that on the day of Decedent's death, CO Tucker attacked Decedent and beat him with a baton. When Decedent thereafter grabbed the baton from Tucker and hit him on the forearm, CO Topel and CO Witte tackled and restrained Decedent, forcing him to the ground and handcuffing him. Claimant asserts that the officers then continued to beat Decedent even after he had been restrained. Claimant further alleges that defendant knew or should have known that these particular employees had a propensity for beating, abusing, and harassing inmates. She also notes that CO Tucker had a history of committing unprovoked violence against Intermediate Care Program (ICP) inmates and that his supervisors knew or should have known about this previous conduct. Based upon these allegations, claimant asserts that the State was negligent in retaining and supervising these employees. She also alleges that defendant was negligent by failing to protect Decedent from the conduct of these officers.
"Under the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer's business and within the scope of employment" (N.X. v Cabrini Med. Ctr., 97 NY2d 247, 251 [2002]; see also Steinborn v Himmel, 9 AD3d 531, 532 [3d Dept 2004]). Based upon the allegations that Decedent grabbed the baton from CO Tucker and began to strike him with it, the conduct of Tucker, Witte, and Topel as well as that of the later intervening correction officers in gaining control of and restraining Decedent may be found to have been taken in furtherance of defendant's business. If so, the officers would have been acting within the scope of their employment and defendant may be vicariously liable for their conduct. In this instance, the causes of action for negligent retention and supervision would be unnecessary.
Of course, if it is determined that the employees were acting within the scope of their employment, claimant is time-barred from recovering for Decedent's conscious pain and suffering caused by the use of excessive or unnecessary force (see supra at 8).
However, if it is determined that the officers were not acting within the scope of their employment, the doctrine of respondeat superior would not apply and defendant would not be vicariously liable. In this type of situation, an "employer [may] still be held liable under theories of negligent hiring, negligent retention, and negligent supervision. . . . [A] necessary element of such causes of action is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury" (Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159, 161 [2d Dept 1997], lv dismissed 91 NY2d 848 [1997], cert denied 522 US 967 [1997] [citations omitted]; see also Dia CC. v Ithaca City School Dist., 304 AD2d 955, 956 [3d Dept 2003], lv denied 100 NY2d 506 [2003]; Detone v Bullit Courier Serv., 140 AD2d 278 [1st Dept 1988], lv denied 73 NY2d 702 [1988]). In a cause of action for negligent supervision, the claimant must establish that if the supervision had been adequate, the employer would have known of the employee's propensity for the type of conduct which caused the injury (Doe v State of New York, UID No. 2010-042-503 [Ct Cl, Siegel, J., Jan. 15, 2010]).
Claimant has alleged that CO Tucker had a history of abusing and beating inmates, particularly inmates in ICP where Decedent was housed and that Tucker's supervisors were aware of or should have been aware of this propensity. These allegations are sufficient to set forth causes of action for negligent retention and/or negligent supervision. Accordingly, the Court finds that claimant has established at least the initial appearance of merit with respect to her proposed causes of action for negligent retention and negligent supervision.
The Court notes that at this point, defendant has not raised as an affirmative defense that the correction officers involved were acting outside the scope of their employment. Nevertheless, "at this early stage of the [litigation], and in the absence of a clear concession by . . . defendant that the officer[s] acted completely within the scope of [their] employment, [claimant is] . . . entitled to plead incompatible theories of recovery in the alternative" (Pickering v State of New York, 30 AD3d 393, 394 [2d Dept 2006] [citations omitted]).
Claimant has also included a proposed cause of action for negligent failure to protect Decedent. Claimant alleges that because defendant and its officers at Sullivan knew or should have known of the propensity of Tucker, Witte, and Topel to initiate violent attacks upon the inmates, the other responding officers were negligent in failing to intervene to protect Decedent. The Court notes that an allegation that an officer has been negligent in failing to protect an inmate generally arises in the situation where an inmate is assaulted by another inmate, rather than in the situation where the purported assailant is a staff member. In this case, claimant's proposed cause of action for failing to protect is merely a restatement of her cause of action for defendant's negligent retention and/or negligent supervision of the offending officers. As a result, this cause of action lacks the appearance of merit and this factor weighs against claimant.
Accordingly, as pertaining to the proposed causes of action for negligent failure to protect (and conscious pain and suffering based upon this alleged negligent conduct), the Court finds that three of the six factors weigh in claimant's favor. However, the crucial issue of merit weighs against her. "[W]here 'the excuse offered for the delay is inadequate and the proposed claim is of questionable merit' " (Matter of Robinson v State of New York, 35 AD3d 948, 949-950 [3d Dept 2006], quoting Matter of Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002]), denial of a late claim application is appropriate (see Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]).
However, with respect to claimant's proposed causes of action for negligent retention and negligent supervision as well as the cause of action for conscious pain and suffering based upon this alleged negligent conduct, four of the six factors, including the all-important factor of merit, weigh in claimant's favor.
Claimant's motion for permission to late file a claim is therefore granted solely to the extent that claimant shall file a claim containing only causes of action for negligent retention, negligent supervision, and conscious pain and suffering based upon defendant's negligence as set forth herein, and serve a copy of it upon the Attorney General within 40 days from the date of filing of this Decision and Order in the Office of the Clerk of the Court. The service and filing of the claim shall be pursuant to the strict requirements of the Court of Claims Act.
January 18, 2017
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims The following papers were read on claimant's motion and defendant's cross motion: 1) Notice of Motion filed on October 14, 2016; Affidavit of Daniel M. Eisenberg, Esq., sworn to on October 11, 2016, and attached exhibits; Memorandum of Law dated October 11, 2016. 2) Notice of Cross Motion filed on November 16, 2016; Affirmation of Joseph F. Romani, AAG, dated November 15, 2016, and attached exhibits; Memorandum of Law dated November 15, 2016. 3) Reply Affidavit of Daniel M. Eisenberg, Esq., sworn to on November 21, 2016, and attached exhibits; Reply Memorandum of Law dated November 21, 2016. Filed Papers: Claim filed on July 29, 2016; Verified Answer filed on September 8, 2016; Amended Claim filed on September 16, 2016.