Opinion
# 2015-015-054 Claim No. 122977 Motion No. M-86120 Cross-Motion No. CM-86270
05-11-2015
RICHARDSON v. THE STATE OF NEW YORK
Law Offices of Mitchell H. Spinac By: Rosa Lee Charpentier, Esq. Of Counsel Honorable Eric T. Schneiderman, Attorney General By: Michael C. Rizzo, Esq. Assistant Attorney General
Synopsis
Two of three incidents forming basis for claim were dismissed as time barred. Claimant failed to establish the existence of a mental disability sufficient to toll the applicable limitations period.
Case information
| UID: | 2015-015-054 |
| Claimant(s): | LEVOGIE RICHARDSON |
| Claimant short name: | RICHARDSON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption is amended sua sponte to reflect the only properly named defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122977 |
| Motion number(s): | M-86120 |
| Cross-motion number(s): | CM-86270 |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Law Offices of Mitchell H. Spinac By: Rosa Lee Charpentier, Esq. Of Counsel |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Michael C. Rizzo, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 11, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves to dismiss that portion of the claim which seeks damages for incidents which occurred in 2003 and 2008 as time barred under Court of Claims Act § 10 (3). Claimant opposes the motion and cross-moves to renew his prior motion for late claim relief pursuant to Court of Claims Act § 10 (6).
By Decision and Order dated June 28, 2013, this Court granted claimant's motion to file a late claim alleging he was the victim of an assault by fellow inmates in the mess hall of Great Meadow Correctional Facility on August 2, 2011. In that same motion, claimant also sought to file and serve a late claim regarding assaults which allegedly occurred on July 27, 2003 and July 20, 2008. In doing so, claimant sought to invoke the tolling provision of Court of Claims Act § 10 (5), which permits the filing and service of a claim within two years after a "legal disability" is removed. The Court denied the motion with respect to the incidents which allegedly occurred in 2003 and 2008 since the threshold issue of whether the motion was timely under Court of Claims Act § 10 (6) could not be determined. Although claimant alleged entitlement to the toll by virtue of his mental illness, no admissible medical evidence had been submitted regarding the nature of his disability, its duration or whether it prevented him from protecting his legal rights. In the event claimant suffered from a continuing "legal disability" under Court of Claims Act § 10 (5), it was noted in this Court's prior Decision and Order that the claim may be filed and served as a matter of right within the ten-year tolling period specified in CPLR 208 (see Richardson v State of New York, UID No. 2013-015-435 [Ct Cl, Collins, J., June 28, 2013], citing, inter alia, Boland v State of New York, 30 NY2d 337, 342-343 [1972]).
Following issuance of the Decision and Order, claimant filed a claim on July 18, 2013 in which he seeks damages for assaults occurring on July 27, 2003, July 20, 2008 and August 2, 2011. Defendant now moves to dismiss the claim as untimely to the extent it seeks damages for the 2003 and 2008 assaults. Inasmuch as defendant established its prima facie entitlement to dismissal of these claims as untimely under Court of Claims Act §10 (3), the burden shifted to claimant "to tender 'evidentiary proof in admissible form' . . . demonstrating the existence of a triable issue of fact that he suffered from such mental disability sufficient to toll the limitations period" (Lynch v Carlozzi, 284 AD2d 865 [3d Dept 2001]). This he failed to do.
To invoke the benefit of the tolling provisions of Court of Claims Act § 10 (5) and CPLR 208, more than a conclusory allegation regarding the existence of a legal disability is required. The Court of Appeals has cautioned that the class of persons entitled to assert the toll for insanity must be narrowly interpreted to include " only those individuals who are unable to protect their legal rights because of an over-all inability to function in society" (McCarthy v Volkswagen of Am., 55 NY2d 543, 548 [1982]). In opposition to defendant's motion and in support of his cross motion, claimant submits certified psychiatric records from the Central New York Psychiatric Center (CNYPC). These records reflect that claimant has a history of mental illness dating back to the age of 8 and has experienced multiple admissions to psychiatric facilities. According to these records, claimant has been admitted to CNYPC for treatment on two occasions - October 3, 2002 through November 21, 2002 and (2) April 11, 2006 through July 14, 2006 - and has been placed in the intermediate care programs at various correctional facilities. Nothing in these medical records establishes that the claimant was unable to protect his legal rights, or the periods during which he was allegedly unable to do so. Nor, was an affidavit from a medical expert provided (cf. Schulman v Jacobowitz, 19 AD3d 574 [2d Dept 2005]; Santana v Union Hosp. of Bronx, 300 AD2d 56 [1st Dept 2002]). As a result, claimant failed to meet his burden of demonstrating the existence of a triable issue of fact with regard to the existence of mental disability sufficient to toll the limitations period. Inasmuch as the claim was filed more than 90 days after the 2003 and 2008 incidents occurred, and defendant preserved this defense by raising it with sufficient particularity in its answer (see Court of Claims Act § 11 [c]), the claim must be dismissed to the extent it alleges damages arising from the assaults which allegedly occurred on July 27, 2003 and July 20, 2008.
Based on the foregoing, defendant's motion is granted and that portion of the claim seeking damages for assaults which occurred in 2003 and 2009 is dismissed. The claim remains pending to the extent it alleges damages arising from the 2011 assault. Claimant's cross motion is denied.
May 11, 2015
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
Notice of motion dated December 30, 2014;
Affidavit of Michael C. Rizzo sworn to December 30, 2014 with exhibits A-C;
Notice of cross motion dated February 3, 2015;
Affirmation of Rosa Lee Charpentier affirmed February 3, 2015 with exhibit;
Reply affidavit of Michael C. Rizzo sworn to February 6, 2015.