Opinion
# 2013-031-074 Claim No. 110638 Motion No. M-83025
09-30-2013
MANUAL WILSON, RANDALL COLLINS, GREGORY ROSTICK, SHAFI ABDUL-JABBAR, JOHN ROZANSKI, and AUSTIN TROUT v. THE STATE OF NEW YORK
Claimant's attorney: MILLER & MILLER, ESQS. BY: JOHN V. JANUSAS, ESQ. Defendant's attorney: HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: G. LAWRENCE DILLON, ESQ. Assistant Attorney General
Synopsis
As permitting Defendant time to obtain its own expert in response to Claimant's admittedly late expert disclosure removes any perceived prejudice, Defendant's motion to preclude is denied. Defendant adequately demonstrated, however, that the claim is untimely as it relates to the causes of action of two of the Claimants. Those portions of the claim are dismissed.
Case information
UID: 2013-031-074 Claimant(s): MANUAL WILSON, RANDALL COLLINS, GREGORY ROSTICK, SHAFI ABDUL-JABBAR, JOHN ROZANSKI, and AUSTIN TROUT Claimant short name: WILSON ET AL Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant (s): Third-party defendant(s): Claim number(s): 110638 Motion number(s): M-83025 Cross-motion number (s): Judge: RENÉE FORGENSI MINARIK MILLER & MILLER, ESQS. Claimant's attorney: BY: JOHN V. JANUSAS, ESQ. HON. ERIC T. SCHNEIDERMAN Defendant's New York State Attorney General attorney: BY: G. LAWRENCE DILLON, ESQ. Assistant Attorney General Third-party defendant's attorney: Signature date: September 30, 2013 City: Rochester Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The following papers were read on motion by Defendant, seeking the dismissal of the causes of action of two of the Claimants as untimely, and also requesting that Claimants be precluded from offering expert testimony at trial:
1) Defendant's Notice of Motion, filed February 21, 2013;
2) Affirmation of G. Lawrence Dillon, Esq., dated February 20, 2013, with exhibits;
3) Affirmation of John V. Janusas, Esq., dated April 30, 2013, with exhibits;
4) Filed Documents: Claim and Verified Answer.
BACKGROUND
In this action, Claimants (six inmates who all contracted an infectious disease at Riverview Correctional Facility) allege that they were infected (or reinfected) with the disease between March and September of 2003, when certain health care providers employed at the facility negligently failed to follow proper contagious disease protocols.
With this motion, Defendant seeks dismissal of the causes of action of two of the six Claimants as untimely and additionally seeks to preclude all Claimants from offering expert testimony at the trial of this claim.
Defendant seeks the dismissal of the causes of action of Claimant Shafi Abdul-Jabbar and Claimant Austin Trout. In this regard, Defendant has demonstrated that the claim filed on behalf of each of these inmates was untimely. Claimants concede that the claims of these two individuals are technically untimely, but request that the Court overlook these deficiencies in the interests of justice. Unfortunately, the requirements set forth in Court of Claims Act regarding service are jurisdictional in nature and, as such, must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722 [1989]; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687 [3d Dept 2000]). The Court is not free to disregard these requirements. "[D]iscretion, equity, or a harsh result may not temper application of a rule of law" (Martin v State of New York, 185 Misc 2d 799, 804 [Ct Cl 2000]).
Defendant also argues that all Claimants should be precluded from offering expert testimony at the trial of this matter because: 1) Claimants have failed to attach a certificate of merit to their claim; 2) Claimants have failed to comply with the Court's scheduling order with regard to disclosure of expert witness information; and 3) Claimants failed to comply with the Court's scheduling order with regard to filing of the note of issue.
Claimants respond to this portion of Defendant's motion by arguing that, although the claim does mention both medical malpractice and negligence, a certificate of merit was not necessary because the claim asserts, essentially, a negligence cause of action and not a cause of action for medical malpractice. Claimants have alleged both medical neglect and medical malpractice. A cause of action sounding in medical neglect, in essence, alleges negligent omissions or commissions by State caregivers, which can be readily determined without the necessity of expert testimony. However, this theory is limited to "those cases where the alleged negligent act may be readily determined by the trier of the facts based on common knowledge" (Coursen v New York Hosp.-Cornell Med. Ctr., 114 AD2d 254, 256 [1st Dept 1986]). I find that the claim which asserts that a nurse failed to follow standard guidelines for the prevention of communicable diseases is not beyond the ken of the trier of fact and sounds more in negligence than medical malpractice. Accordingly, Claimants' failure to file a certificate of merit is not significant.
With regard to Defendant's arguments concerning Claimants' failure to comply with the Court's previous order regarding expert disclosure and filing the note of issue, I find that, while the assertions are accurate, preclusion would not be an appropriate remedy. This claim has had a relatively complicated and contentious path through the discovery phase of trial preparation. As I stated in my Decision and Order on Claimants' previous motion to compel (M-78177), in which sanctions were requested: "Although a recitation of the complete [discovery dispute] history is not necessary here, I do note that much discovery has taken place and I find that neither party has acted unreasonably or intentionally hindered the orderly preparation of this claim for trial."
Here, despite the delays that have been a frustration for both parties and the Court, I do not find that Claimants have willfully failed to comply with my scheduling order, or willfully tried to frustrate Defendant's preparation for the trial of this matter. Further, although Defendant argues that it has been prejudiced by Claimants' failure to timely comply with the Court's order, any perceived prejudice can be eliminated by giving Defendant additional time to retain an expert, if it so desires. These matters can be addressed at the next preliminary conference. I find that Defendant's motion for preclusion of expert testimony on Claimants' behalf should be denied (Rowan v Cross Country Ski & Skate, Inc., 42 AD3d 563 [2d Dept 2007]).
Accordingly, it is hereby
ORDERED, that Defendant's motion granted in part. The causes of action asserted on behalf of Claimant Shafi Abdul-Jabbar and Claimant Austin Trout are hereby dismissed as untimely; and it is further,
ORDERED, that Defendant's motion to preclude Claimants from offering expert testimony at the trial of this claim is denied.
September 30, 2013
Rochester, New York
RENÉE FORGENSI MINARIK
Judge of the Court of Claims