Opinion
# 2011-044-563 Motion No. M-80515
11-18-2011
SK v. THE STATE OF NEW YORK
Synopsis
Motion for permission to file/serve late claim denied, without prejudice. Case information
UID: 2011-044-563 Claimant(s): SK, Individually and as Brother and Guardian of SAK Claimant short SK name: Footnote The Court has sua sponte amended the caption to reflect a (claimant name) fictitious name for claimant and his infant sibling to protect : the confidentiality afforded under the Mental Hygiene Law. Defendant(s): THE STATE OF NEW YORK Footnote The Court has sua sponte amended the caption to reflect the (defendant State of New York as the sole proper defendant. name) : Third-party claimant(s): Third-party defendant(s): Claim number None (s): Motion number M-80515 (s): Cross-motion number(s): Judge: CATHERINE C. SCHAEWE Claimant's CHAMBERLAIN LAW OFFICE, LLC attorney: BY: James P. Chamberlain, Esq., of counsel Defendant's HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL attorney: BY: Joseph F. Romani, Assistant Attorney General Third-party defendant's attorney: Signature date: November 18, 2011 City: Binghamton Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, as guardian of SAK, an infant over the age of 14 (the Infant), moves for permission to file a late claim to recover for personal injuries allegedly received by the Infant while under the care and custody of the Office for Persons with Developmental Disabilities (OPWDD) at the Broome Developmental Disabilities Services Office, Chenango Regional Center (the Center). Defendant State of New York (defendant) opposes the motion.
Claimant, in his individual capacity, asserts a derivative cause of action.
Initially, Court of Claims Act § 10 (5) provides that "[i]f the claimant shall be under legal disability, the claim may be presented within two years after such disability is removed." Because infancy is a legal disability (see Henry v City of New York, 94 NY2d 275, 279-280 [1999]), this motion is unnecessary and is denied as moot with respect to the Infant's claim. However, the infancy toll is personal in nature and does not apply to claimant's derivative claim (see Cahill v Lat, 39 AD3d 1013, 1014 [2007]; Whipple v Goldsmith, 202 AD2d 834, 835 [1994]). Accordingly, the Court will address the motion solely with respect to claimant's potential claim.
A motion seeking permission to file and serve a late claim must be brought within the statute of limitations period attributable to the underlying cause of action (Court of Claims Act § 10 [6]). Claimant asserts that on August 19, 2010, the Infant was seriously injured due to defendant's negligent supervision. The statute of limitations for a proposed cause of action in negligence is three years from the date of accrual (CPLR 214 [5]). Accordingly, this motion mailed on October 14, 2011 is timely (Matter of Unigard Ins. Group v State of New York, 286 AD2d 58 [2001]).
The statute of limitations for a derivative cause of action is the same as that applicable to the underlying cause of action (Quinto v New York City Tr. Auth., 7 AD3d 689 [2004]).
Having determined that the motion is timely, 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 because he mistakenly believed that the Center was a department of Broome County Government, he served that entity with a "Notice of Claim," followed by the filing and service of a summons and complaint in an action commenced in Supreme Court, Chenango County. Claimant's failure to ascertain the correct identity of defendant is not an acceptable excuse for the delay in timely serving a notice of intention or timely filing and serving a claim (see generally Matter of Sandlin v State of New York, 294 AD2d 723 [2002], lv dismissed 99 NY2d 589 [2003]). Accordingly, this factor weighs against claimant.
Given claimant's choice of venue of Chenango County for the Supreme Court action, the Court finds claimant's alleged belief that the Center was a department of Broome County Government to be somewhat less than credible (CPLR 504 [1]).
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. Claimant asserts that defendant had notice of the facts of this claim because a "Notice of Claim" was sent to Susan Nelson, at the Center. Further, claimant states that a summons and complaint providing notice were also served.Defendant, having received a copy of the summons and complaint filed in the Supreme Court action, concedes that it had notice of the essential facts. Further, the Center apparently conducted an investigation at the time of the incident, and defendant does not argue that it lacked an opportunity to investigate. Moreover, defendant does not assert that there will be substantial prejudice to the State in defending this claim, nor does the Court discern any prejudice. Thus, the three factors of notice, an opportunity to investigate, and the lack of substantial prejudice weigh in favor of claimant.
The Court notes that claimant has not submitted a copy of the summons and complaint filed in the Supreme Court action, nor has claimant provided a copy of the motion for a default judgment apparently pending in that Court.
Another factor to be considered is whether claimant has any other available remedy. The injury occurred when the infant was assaulted while in defendant's custody and care at the Center, allegedly due to defendant's negligence. The Court of Claims is the proper forum for this action against the State. This factor also weighs in favor of 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 [1977]). In order to establish a meritorious claim, a claimant 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 [1992]).
It is well established that a hospital or other residential care facility has a duty to "safeguard the welfare of its patients, even from harm inflicted by third persons, measured by the capacity of the patient to provide for his or her own safety" (N.X. v Cabrini Med.Ctr., 97 NY2d 247, 252 [2002]; see Morris v Lenox Hill Hosp., 232 AD2d 184, 185 [1996], affd 90 NY2d 953 [1997]). However, the owner of such a facility is not an insurer of the safety of its residents nor is it required to keep each patient under constant observation (Killeen v State of New York,
66 NY2d 850, 851 [1985]). In order to set forth a cause of action for negligent supervision, a claimant must provide evidence that the defendant had notice of the assailant's violent tendencies or that it otherwise deviated from a relevant standard of supervision (Hranek v United Methodist Homes of Wyo. Conference, 27 AD3d 879, 881 [2006]; Rodriguez v Terence Cardinal Cooke Health Care Ctr., 4 AD3d 147 [2004], lv denied 4 NY3d 703 [2005]; Willetts v State of New York, Ct Cl, Mar. 30, 2007, Collins, J., Claim No. None, Motion No. M-72726 [UID # 2007-015-165]). A general allegation of negligence unsupported by factual detail is insufficient to establish a meritorious cause of action (Witko v State of New York, 212 AD2d 889, 891 [1995]).
Claimant alleges that defendant breached its duty to the Infant because the Infant was assaulted (headbutted) by a fellow resident at the Center. Claimant has not provided any evidence that the Infant's attacker had violent tendencies, nor has claimant set forth any standard of supervision which may have been breached. The allegations of negligence are conclusory in nature, and therefore insufficient to establish the appearance of merit (see Matter of Santana v New York State Thruway Auth., supra). Accordingly, the factor of merit also weighs against claimant.
"[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 [2006], quoting Matter of Perez v State of New York, 293 AD2d 918, 919 [2002]), denial of a late claim application is appropriate. Although four of the six statutory factors weigh in favor of claimant, the crucial issue of merit weighs against him. Claimant's motion for permission to file and serve a late claim is denied, without prejudice.
November 18, 2011
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims
The following papers were read on claimant's motion:
1) Notice of Motion filed on October 17, 2011; Affidavit of SK sworn to on October 6, 2011; Proposed Claim.
2) Affirmation in Opposition of Joseph F. Romani, Assistant Attorney General, dated November 2, 2011.