Opinion
# 2019-028-578 Claim No. 124573 Motion No. M-90482 Cross-Motion No. CM-90569
10-02-2019
BRADFORD AND MARY-ANNE SURLOCK on behalf of MICHAEL SURLOCK v. THE STATE OF NEW YORK
THE LAW OFFICE OF WILLIAM J. PORTA BY: William J. Porta, Esq. HON. LETITIA JAMES, ATTORNEY GENERAL BY: Aimee Paquette, Esq. Assistant Attorney General
Synopsis
Motion by defendant to dismiss the claim as untimely and as barred by the doctrines of res judicata and collateral estoppel was denied and the cross-motion for leave to amend the claim was granted
Case information
| UID: | 2019-028-578 |
| Claimant(s): | BRADFORD AND MARY-ANNE SURLOCK on behalf of MICHAEL SURLOCK |
| Claimant short name: | SURLOCK |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124573 |
| Motion number(s): | M-90482 |
| Cross-motion number(s): | CM-90569 |
| Judge: | RICHARD E. SISE |
| Claimant's attorney: | THE LAW OFFICE OF WILLIAM J. PORTA BY: William J. Porta, Esq. |
| Defendant's attorney: | HON. LETITIA JAMES, ATTORNEY GENERAL BY: Aimee Paquette, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 2, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read on Defendant's motion to dismiss the claim and Claimants' cross-motion for leave to amend the claim:
1. Notice of Motion dated May 23, 2017;
2. Affirmation of Aimee Paquette dated May 23, 2017 with Exhibits A-J annexed;
3. Notice of Cross-Motion dated June 10, 2017;
4. Affirmation of William J. Porta dated June 10, 2017 with Exhibits 1-4 annexed;
5. Affirmation of Aimee Paquette dated June 20, 2017;
6. Affirmation of William J. Porta dated June 30, 2017 with Exhibit 1 annexed.
Filed papers: Verified Claim; Verified Answer
This action was commenced by Bradford and Mary-Anne Surlock in their individual capacities and on behalf of their adult son Michael Surlock (claimant). The claim is based on allegations that Michael suffered physical and psychological abuse, and was denied adequate care, during the time he resided at a residential care facility operated by the New York State Office of People with Developmental Disabilities (OPWDD) in Central Square, Oswego County. Defendant has move to dismiss some of the causes of action in the claim alleging that they were not timely served or filed or are barred by the doctrines of res judicata and collateral estoppel. Claimants have cross-moved to amend the claim to add causes of action alleged to have arisen since the original claim filing.
In December 2012 claimant was transferred from a residential care facility operated by OPWDD on Fravor Road in Mexico, Oswego County to a facility in Central Square. According to the claim, there were a series of incidents beginning on June 25, 2013 and continuing through June 8, 2014 in which claimant suffered physical and psychological abuse at the hands of the staff where he resided. The claim further alleges that during this time claimant was subjected to a number of failures in administering his medications. Four causes of action are alleged and in each claimant asserts that he was caused to suffer sever injuries as a result of defendant's breaches of its obligations to him. Though Bradford and Mary-Anne Surlock are also named as claimants, the pleading does not allege a claim on their behalf.
In moving to dismiss defendant argues that certain incidents alleged in the claim occurred beyond the time within which such claims must be filed to comply with Court of Claims Act §10. However, in the attorney affirmation submitted in opposition to the motion, the attorney notes, without contradiction by defendant, that claimant is significantly developmentally disabled as he suffers from a severe form of autism and mental retardation. The argument is then made that, under Court of Claims Act § 10 (5), where, as here, the claimant is under a legal disability at the time the claim accrues, the claim may be presented within two years after such disability is removed (see Boland v State of New York, 30 NY2d 337 [1972]). Defendant, without disputing the factual predicate for application of section 10 (5), offers the anomalous argument that the sub-section does not affect the time when the claim may be served. Citing Tooks v State of New York, 40 AD3d 1347 (3d Dept 2007) and Coleman v State of New York, 158 AD2d 500 (2d Dept 1990), defendant argues, based on the principle that the timely service provisions of the Court of Claims Act represent conditions precedent to suit (see Court of Claims Act § 11 [a] [1]), that the time frames set forth in CCA § 10 for filing and serving a claim are not subject to tolling and therefore, section 10 (5) cannot save the claim. Neither cited case, however, involved the application of section 10 (5). The court in Coleman addressed the question of whether tolling provisions in CPLR article 2 could be invoked to extend the statutory period for filing a claim against the State. In Tooks the court was faced with the question of whether the administrator of an estate had timely served a claim within the two year period provided for in Court of Claims Act § 10 (2). After concluding that the claim had not been served within the allowable time, the court went on to address other arguments raised by claimant. In doing so, the court noted that the timely filing requirements were not subject to tolling .
While the case law relied on by defendant supports the proposition that the timely filing requirements of Court of Claims Act § 10 are not subject to tolling, those cases do not support the supposition that section 10 (5) is a tolling provision. Though courts have sometimes referred to section 10 (5) as providing a toll (Puckerin v State of New York, 159 AD3d 848 [2d Dept 2018]; Bowles v State of New York, 208 AD2d 440 [1st Dept 1994]); Rosefsky by Koffman v State of New York, 205 AD2d 120 [3d Dept 1994]), the Tooks case demonstrates that the two year filing period in section 10 (5), like the requirements of Court of Claims Act § 10 [1], [3], [3-a], [3-b] and [4], presents a time frame for serving and filing claims but, like the provision in section 10 (2), without regard to the date of accrual. Section 10 (5) stands by itself, without reference to any other timely service requirement, and therefore, is not a toll. Given that Michael's disability persist, all claims asserted on his behalf are timely.
Insofar as the motion to dismiss is based on res judicata or collateral estoppel, those grounds also fail. Defendant concedes in an attorney affirmation that claims asserted after December 18, 2012 are not barred by res judicata or collateral estoppel and in an affirmation by his attorney, claimant has limited the instant claim to the time Michael resided at the Central Square facility i.e., the time after December 2012.
Defendant's concern that claimant has listed, in response to a demand for each alleged occurrence of wrongdoing, incidents that occurred at Fravor Road i.e. prior to December 18, 2012, does not change that conclusion. In the discovery response, claimant prefaced the 84 page list by indicating that it was his intent to only use the incidents to show a pattern and practice of behavior by defendant. The question of what, if any, role these incidents may play in this action presents an evidentiary issue that is not raised here and need not be addressed. In any event no claim is asserted with respect to those incidents.
"It is well settled that, '[i]n the absence of prejudice or surprise, leave to amend a pleading should be freely granted'"(Wojtalewski v Cental Sq. Cent. Sch. Dist., 161 AD3d 1560, 1561 [4th Dept 2018], quoting Boxhorn v Alliance Imaging, Inc., 74 AD3d 1735, 1735 [4th Dept 2010]). The proposed amended claim adds new claims regarding Michael's care that arose after the original claim was filed as well as allegations that requests for hearings by Bradford and Mary-Anne Surlock regarding that care were denied. Defendant has opposed the cross-motion on the basis that it will be prejudiced if the amendment is allowed because of the amount of time that has passed and the amount of discovery that has been completed. However, the impact the amendments may have on further discovery proceedings cannot be characterized as prejudicial as only paper discovery has been undertaken. No depositions have not been conducted so that the progress of moving the original claims to trial will not be greatly impaired. Moreover, given Michael's continuing disability the newly asserted claims could be presented in a new claim.
Nonetheless, certain aspects of the proposed amended claim lack merit and should not be allowed. Among the proposed amendments are allegations that Michael's parents' multiple requests for hearings were denied by employees of OPWDD. While it is not clear from the pleading that separate causes of action are intended, because no damages are alleged to have been suffered by the parents, the allegations do not give rise to a cognizable claim in this court. The remedy for denial of an administrative hearing is to challenge the determination in a proceeding pursuant to CPLR article 78. In addition, any claim based on these events, which are alleged to have occurred from May 2014 through August 2015, would have been untimely when first asserted in the motion. Consequently, the allegations in paragraphs 12-14 should be stricken from the proposed amended claim.
Accordingly, it is
ORDERED, that the motion to dismiss the claim insofar as causes of action are asserted on behalf of Michael Surlock is denied and it is further
ORDERED, that the cross-motion for leave to amend the claim is granted, except that paragraphs 12-14 of the proposed amended claim should be stricken, and it is further
ORDERED, that the amended claim be served on defendant, and filed with the court in compliance with the requirements of Court of Claims Act § 11, within thirty days of the filing of this decision and order.
October 2, 2019
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims