Opinion
# 2016-016-026 Claim No. 127223 Motion No. M-87845 Cross-Motion No. CM-87888
05-10-2016
DAVID W. ROSS v. STATE UNIVERSITY OF NEW YORK and THE STATE OF NEW YORK
David W. Ross, Esq., Pro se Eric T. Schneiderman, Attorney General By: Joseph L. Paterno, AAG
Synopsis
Case information
| UID: | 2016-016-026 |
| Claimant(s): | DAVID W. ROSS |
| Claimant short name: | ROSS |
| Footnote (claimant name) : | |
| Defendant(s): | STATE UNIVERSITY OF NEW YORK and THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127223 |
| Motion number(s): | M-87845 |
| Cross-motion number(s): | CM-87888 |
| Judge: | Alan C. Marin |
| Claimant's attorney: | David W. Ross, Esq., Pro se |
| Defendant's attorney: | Eric T. Schneiderman, Attorney General By: Joseph L. Paterno, AAG |
| Third-party defendant's attorney: | |
| Signature date: | May 10, 2016 |
| City: | New York, NY |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Dr. David Ross alleges that agents of his employer, the State University's Downstate Medical Center, acted, among other things, to libel him. Dr. Ross applies here for permission to file a late claim under section 10 (6) of the Court of Claims Act (the "Act"). For its part, the defendant State of New York opposes the application and cross moves for dismissal.
According to the claim, Dr. Ross takes issue with statements made in December of 2014 orally and via email by SUNY Downstate's administrators to the attending physicians of the emergency medical department and other personnel.
The first email cited by Dr. Ross was sent out by the residency program director, dated December 14, 2014, and included the following: "Until further notice Dr Ross is not allowed to supervise and precept any residents. If you have patients to present, please find another attending" (the claim, exhibit A to defendant's Affirmation, paragraph 4).
Three days later, an email from the director of emergency medicine education read as follows:
"Until further [n]otice Dr. Ross should not be supervising or precepting students. Please ensure this is the case when you are working in the clinical areas. Pending advisement from the medical school we will generate a formal statement to be given during orientation for all students rotating in the ED. Thank you for your assistance and please let me know if you have any concerns."
[Id.]
Paragraph 4 of the claim also asserts that in April of 2015, Dr. Ross learned that "word had spread" he had been absent from work because he had been disciplined, when in fact he was on personal leave. Some time later in the year, claimant believes that it might have been September, a resident physician in an evaluation wrote "I worked with Dr. Ross twice after his disciplinary action period . . ." (id.).
Furthermore, claimant criticized a third administrator, the associate residency program director, who along with its director, controlled the evaluation system and prevented him from working with residents and medical students. Dr. Ross maintained that this individual, "without justification, colluded" with the director "in attempts to continue to withhold those teaching privileges, and in promulgating the slander and libel herein mentioned" (id., paragraph 5).
Dr. Ross maintained that the employees of SUNY Downstate "had a duty to Claimant to provide legitimate, unbiased and upright career evaluation and feedback, including career evaluation and feedback" (id., paragraph 6). Ross claimed injury to his reputation, career and his emotional and physical health.
Ross' motion seeking permission to file a late claim under the Act added new facts and new causes of action; the latter included negligent supervision, negligent infliction of emotional stress and tortious interference with business relations. Dr. Ross' motion for a late claim contains exhibits A through I:
- Exhibits A and B, dated December 14 and 17, 2014, are the above-mentioned emails from residency program administrator and director of emergency medicine education at SUNY Downstate.
- Exhibit C is a completed Resident Evaluation of Faculty form that contains the reference to claimant having been disciplined.
- Exhibit D is claimant's exchange of emails with a Michael Lucchesi, in which on August 15, 2014, Lucchesi writes "Go and enjoy your vacation Dave. We'll discuss this when you get back. Please set up a meeting with Sam [gives phone extension]. I agree with holding off on your suspension of clinical teaching responsibilities until we have had a chance to discuss it." Claimant had mentioned the suspension in his email to Lucchesi earlier that day, which is part of this exhibit.
- Exhibit E are two emails from claimant, one of four pages, dated August 11, 2014, and a one-page email, dated April 7, 2014. The latter email mentions "emtala," the federal Emergency Medicine Treatment and Active Labor Act ( 42 USC 1395dd), and states that "I will further investigate the emtala issue, as we discussed, and further correspond with a formal letter emphasizing the need for the ED attending, any attending at any time, to have access to consultant attendings . . ." In the April 7 email, Dr. Ross, who is also an attorney, allows that, "This is our medical legal burden . . . It is my medicolegal opinion . . . that is exactly how both the plaintiff and defense malpractice lawyers see it."
- Exhibit F is a July 7, 2015 email from Mark Silverberg that introduces itself as a"reminder about procedure logging."
- Exhibit G are emails from claimant that he needs to take some time off because of illness (dated December 23 and 30, 2014); and exhibit H is his doctor's form to that effect (signed by Dr. Stephen Paget, January 6, 2015) .
- Exhibit I is one page - - page 4 - from what the late claim application describes as "Claimant's LOA inclusion of teaching and supervision." An arrow is drawn on the page pointing to section 2.2. (b), entitled, "Supervision of Residents and Fellows," which closes with ". . .the Physician shall not be held accountable for any adverse events arising from a lack of support."
Following defendant's submission, claimant presented an Affirmation in Reply, consisting of a 37-page text and 17 exhibits, J through Z. The Reply includes: Dr. Ross' phone records; staff biographies; a list of courses in emergency medicine with the assistant professors teaching them; Downstate's approval of Dr. Ross' request for leave (granted from December 15, 2014 through March 26, 2015); and additional emails. The emails covered discussions on scheduling, including time off for jury duty; exhibit R, dated August 21, 2014, contained the following: "It's Dave Ross here. We spoke by phone about a year ago when I had informed you of the privacy issue on the HealthBridge EMR system, wherein the entire SS# of employees who had previously visited Employee Health were being displayed in the system without any masking. Actually, I haven't followed up to see if that is still the case, but having discussed it with you, I felt confident you would solve the problem." * * *
Paragraph 4 of the claim asserts that its causes of action "took place for a period of time prior to December 14th and 17th , 2014, and culminated in emails [sent on those dates]." The claim was served and filed on December 17 of 2015. Section 3 of Act requires that a claim for personal injury be served on the Attorney General and filed with the Court within 90 days of accrual (six months for breach of contract).
The Court of Appeals has stated that "Because suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed . . ." (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). The failure to comply with the limitations of time contained in section 10 of the Court of Claims Act "constitutes a jurisdictional defect warranting dismissal of the claim (citations omitted)." Davis v State of New York, 89 AD3d 1287 (3d Dept 2011). Accordingly, because it is untimely, Dr. Ross' claim cannot go forward.
Application for Late Claim
Section 10 (6) of the Act provides that the Court, in deciding an application for a late claim, shall consider six factors, although ordinarily the presence or absence of any particular one is not dispositive: whether (i) defendant had notice of the essential facts constituting the claim; (ii) defendant had an opportunity to investigate the circumstances underlying the claim; (iii) defendant was substantially prejudiced; (iv) the delay was excusable; (v) claimant has any other available remedy; and (vi) the claim appears to be meritorious.
See Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 (1982); Scarver v State of New York, 233 AD2d 858 (4th Dept 1996).
The First Department has stated: "To be meritorious, a claim must not be patently groundless, frivolous or legally defective, and the record as a whole must give reasonable cause to believe that a valid cause of action exists ( citation omitted)" (Sands v State of New York, 49 AD3d 444 [2008]).
In the Sands case, the "legally defective" language was part of its analysis of one of the six factors; but it is well established that it would be futile to grant an application under section 10 (6) if the proposed claim lacks a basis in law (Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]).
Section 10 (6) requires that the application therefor contain the proposed claim. Section 11 (b) requires a claim for personal injury provide the time and place of occurrence, the nature of the claim and the items of damages or injuries alleged. Compliance with the specificity requirements of Section 11 (b) are also to be strictly construed as jurisdictional requisites (Kolnacki v State of New York, 8 NY3d 277 [2007]).
A cause of action sounding in contract shall also state the sum of damages that are being sought.
Dr. Ross fails to connect any alleged facts to a proffered cause of action that is legally valid; and thus does not satisfy section 11 (b). Furthermore, it is not disputed that claimant is covered by the collective bargaining agreement between the State and the United University Professions. * * *
Applicable portions of the 2011-2016 collective bargaining agreement, running though the grievance and arbitration procedures (through page 22), are attached as exhibit B to defendant's Affirmation.
In view of the foregoing, and having considered the parties' submissions, IT IS ORDERED that motion No. M-87845 is denied, cross motion No. CM-87888 is granted, and claim No. 127223 is dismissed.
The following were reviewed: from claimant - - a Notice of Motion and Motion for Permission to File a Late Claim (with exhibits A through I), and an Affirmation in Reply to Defendant's Opposition to Claimant's Motion and in Opposition to Defendant's Cross-Motion (with exhibits J through Z); from defendant - - a Notice of Cross- Motion and an Affirmation in Support of Cross-Motion and in Opposition to Claimant's Motion (with exhibits A and B). --------
May 10, 2016
New York, NY, New York
Alan C. Marin
Judge of the Court of Claims