Motion for permission to serve and file a late claim granted insofar as it seeks to allege a cause of action for failure to provide a safe workplace and otherwise denied.
|Claimant short name:||WALKER|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CATHERINE E. LEAHY-SCOTT|
|Claimant's attorney:||Anthony Walker, Pro Se|
|Defendant's attorney:||Hon. Letitia James, Attorney General
Christopher J. Kalil, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 6, 2020|
|See also (multicaptioned case)|
Movant also seeks damages for medical malpractice/medical negligence for the failure of the Department of Corrections and Community Supervision to provide appropriate care to treat his injuries following the incident. Defendant opposes the motion.
Court of Claims Act § 11 (a) (i) provides that a "claim shall be filed with the clerk of the court; and . . . a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court." "A claimant seeking to recover damages for personal injuries caused by the negligence, intentional tort or unintentional tort of an officer or employee of the State must file and serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see Court of Claims Act § 10 , [3-b]).
The Court has discretion to permit the filing of a late claim pursuant to Court of Claims §10 (6) provided that the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. The proposed claim alleges causes of action for negligence, which carries a three-year statute of limitations under CPLR 214 (5) and medical malpractice which carries a statute of limitations of two years and six months (see CPLR 214-a). Because it is undisputed that the proposed claim accrued on August 18, 2019 and the instant application was made on January 15, 2020, the proposed claim is timely.
Upon satisfaction that the proposed claim is timely, the Court will consider six statutory factors set forth in Court of Claims Act § 10 (6) as well as other relevant factors in determining whether to grant the late claim (see Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Although the movant need not satisfy every statutory factor enumerated in Court of Claims Act § 10 (6) (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 ), the ultimate burden rests with the movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797, 804 [Ct Cl 1977]).
The first factor to be considered is whether the delay in filing the claim was excusable. Movant contends that the late filing of his claim is excusable because Mid-State Correctional Facility's "business office did not take my disbursement out in time" (Mot for Permission to File a Late Claim ¶ 2, Notice of Mot for Permission to File a Late Claim, attach). Movant, however, fails to present any evidentiary support, such as a disbursement form from the facility, detailing the date such request was made and that his account was debited for the purpose of sending a claim or notice of intention to file a claim (see Gary v State of New York, UID No. 2002-031-063 [Ct Cl, Minarik, J., Dec. 2, 2002]). Accordingly, Movant fails to proffer a reasonable excuse for the delay in filing his claim. Nevertheless, "the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief" (Bay Terrace Coop. Section IV, 55 NY2d at 981).
The next three factors to be addressed--whether Defendant had notice of the essential facts constituting the claim, whether Defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant--are interrelated and will be considered together (see Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). Movant argues that Defendant had notice of the facts constituting his proposed claim because he "went to medical and there a [sic] records of this" (Mot for Permission to File a Late Claim ¶ 3). Even assuming this is true, the fact that Defendant possessed medical records of Movant does not, by itself, demonstrate that Defendant had notice of the essential facts constituting the claim and an opportunity to investigate (see Lerner v State of New York, 72 AD3d 406, 407 [1st Dept 2010], lv denied 15 NY3d 703 ; Conroy v State of New York, 192 Misc 2d 71, 72 [Ct Cl 2002]). Consequently, these factors militate against granting late claim relief.
The fifth factor to be considered is whether Movant has another remedy available. Neither party has addressed this factor and it appears that Movant does not have an alternative remedy. Consequently, this factor also weighs in Movant's favor.
The last and perhaps most important factor to be considered is whether the proposed Claim has the appearance of merit, for "it would be futile to permit a defective claim to be filed even if the other factors in Court of Claims Act § 10 (6) supported the granting of the [movant's] motion" (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], affd sub nom. Donald v State of New York, 17 NY3d 389  [internal quotation marks and citation omitted]). It is the movant's burden to show that there is reasonable cause to believe that a valid cause of action exists and that the claim is not patently groundless, frivolous or legally defective (see Sands v State of New York, 49 AD3d 444, 444 [1st Dept 2008]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). Although this standard places a heavier burden upon a party who has filed late, it does not require a movant to definitively establish the merit of the claim or to overcome all legal objections before the Court will permit the filing of a late claim (see Matter of Santana, 92 Misc 2d at 11-12).
Defendant contends, among other things, that the proposed claim lacks merit because it fails to comply with particularity requirement of Court of Claims Act § 11 (b) (see Affirmation of Christopher J. Kalil, Esq., Assistant Attorney General, in Opposition to Mot for Permission to File Late Claim ¶¶ 6-7). "[S]ection 11(b) places five specific substantive conditions upon the State's waiver of sovereign immunity by requiring the claim to specify (1) 'the nature of [the claim]'; (2) 'the time when' it arose; (3) the 'place where' it arose; (4) 'the items of damage or injuries claimed to have been sustained'; and (5) 'the total sum claimed'" (Lepkowski v State of New York, 1 NY3d 201, 207 ). "Although absolute exactness is not required, the claim must provide a sufficiently detailed description of the particulars of the claim to enable [the defendant] to investigate and promptly ascertain the existence and extent of its liability" (Morra v State of New York, 107 AD3d 1115, 1115-1116 [3d Dept 2013] [internal quotation marks and citations omitted]; see Lepkowski, 1 NY3d at 207). The failure to comply with the pleading requirements of Court of Claims Act § 11 (b) is a jurisdictional defect mandating dismissal of the Claim (see Lepkowski, 1 NY3d at 209).
In general, the State has a duty to maintain its property, including its correctional facilities, in a reasonably safe condition (see Preston v State of New York, 59 NY2d 997, 998 ; Basso v Miller, 40 NY2d 233, 241 ; Guzman v State of New York, 129 AD3d 775, 776 [2d Dept 2015]; Bowers v State of New York, 241 AD2d 760, 760 [3d Dept 1997]; Emmi v State of New York, 143 AD2d 876, 878 [2d Dept 1988]). Further, "[i]t is undisputed that [the State], through its correctional authorities, owes a duty to provide inmates engaged in work programs with reasonably safe equipment as well as sufficient warnings and instructions for the safe operation of the work and equipment" (Muhammad v State of New York, 15 AD3d 807, 808 [3d Dept 2005]; Martinez v State of New York, 225 AD2d 877, 878 [3d Dept 1996]).
As to the proposed cause of action for negligence premised upon Defendant's failure to provide a safe workplace, the proposed claim alleges that, "while performing [his] work duties at Mid-State [Correctional Facility] Mess Hall and mopping floor, [Movant] slipped and fell on [his] back injuring [his] body" (Claim Form ¶ 2, Mot for Permission to File a Late Claim, attach). The proposed claim states that this incident occurred on August 18, 2019 at the "Mid-State CF Mess Hall Building Food Serving Prep Area" (id. ¶¶ 3-4).
Although Movant states in one of his proposed claim documents that he does not remember the exact time the incident occurred (see id. ¶ 4), he describes that the incident occurred during "Mess Hall Dinner Meal" (see Notice of Intention Form, at 1 ¶ 4). The Court concludes that this description of the time of day of the incident is sufficiently detailed to enable Defendant to investigate and promptly ascertain the existence and extent of its liability (cf. Savoia v State of New York, UID No. 2002-016-070 [Ct Cl, Marin, J., July 1, 2002] [in denying late claim motion, holding "the fact that (the movant) does not include the time of day in his claim, or even the portion of the day (e.g., the morning) is another indicia of its lack of solidity; in fact, it may well be legally defective" (internal quotation marks and citation omitted)]).
Moreover, the proposed claim alleges that Defendant created "a hazardous work place causing [Movant] to slip and fall by no wet floor markers in place and State employees not properly supervising the safety protical [sic] for clean up, to prevent such accidents" (Notice of Intention Form, at 1,¶ 5). Defendant does not offer any evidentiary support to refute these allegations (see Sessa v State of New York, 88 Misc 2d 454, 458 [Ct Cl 1976] ["(f)acts stated in a motion for leave to file a late claim against the State are deemed true for purposes of motion, when not denied or contradicted in opposing affidavits"] affd 63 AD2d 334 [3d Dept 1978], affd 47 NY2d 976 ). The Court concludes that Movant has set forth sufficient facts to support at least a potentially meritorious claim for failure to provide a safe workplace
The same, however, cannot be said with respect to Movant's proposed causes of action sounding in premises liability and medical malpractice and medical negligence. In a premises liability claim, a claimant must show that an unsafe or dangerous condition existed on the premises; that the State either created the dangerous condition, or had actual or constructive notice of the dangerous condition and failed to alleviate the dangerous condition within a reasonable time; that the condition was the proximate cause of the accident; and that the claimant suffered damages as a result (see Gordon v Museum of Natural History, 67 NY2d 836, 837-838 ; Quintanilla v State of New York, 94 AD3d 846, 847 [2d Dept 2012]). "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [the] defendant's employees to discover and remedy it" (Gordon, 67 NY2d at 837). Although a movant is not required to establish a prima facie claim for negligence on a late claim application, conclusory allegations of negligence, without more, are insufficient to establish a meritorious cause of action exists (see Langner v State of New York, 65 AD3d 780, 783-784 [3d Dept 2009]; Matter of Sandlin v State of New York, 294 AD2d 723, 724-725 [3d Dept 2002]; Lewis v State of New York, UID No. 2019-053-529 [Ct Cl, Sampson, J., July 29, 2019]; see also Heisler v State of New York, 78 AD2d 767, 767-768 [4th Dept 1980] ["(c)onclusory or general allegations of negligence that fail to adduce the manner in which the claimant was injured and how the State was negligent do not meet (the) requirements (of Court of Claims Act § 11 [b])]). Stated differently, the State is not an "insurer of inmate safety, and negligence will not be inferred from the mere occurrence of an accident" (Melendez v State of New York, 283 AD2d 729, 729 [3d Dept 2001], lv dismissed 97 NY2d 649 ).
Here, the proposed claim is devoid of allegations that Defendant either created the alleged dangerous condition or had notice of the dangerous condition for a sufficient period of time to remedy such condition (see Miller v State of New York, UID No. 2008-030-529 [Ct Cl, Scuccimarra, J., June 12, 2008] ["(t)here has been no showing that the State was aware of any defective condition in any electrical wire or any fan and failed to cure it within a reasonable time"]; see also Purdie v State of New York, UID No. 2018-032-005 [Ct Cl, Hard, J., Feb. 27, 2018] [dismissing claim after trial where the claimant failed to show that the defendant created a dangerous condition by allowing water to accumulate on the floor]). Accordingly, to the extent Movant purports to allege a cause of action for premises liability, his claim lacks merit.
As to the proposed claim for medical malpractice and medical negligence, it is settled that "the State owes a duty to provide medical care and treatment to its prisoners, which duty has been defined in terms of both negligence and medical malpractice" (Kagan v State of New York, 221 AD2d 7, 16 [2d Dept 1996]). "Under both theories, however, [the] claimant must establish that the negligence of the State or the State's deviation from the accepted standard of care was the proximate cause of the claimant's injuries" (Lowe v State of New York, 35 AD3d 1281, 1282 [4th Dept 2006]; see Carter v Tana, 68 AD3d 1577, 1579 [3d Dept 2009]). "General allegations of medical malpractice, [which are] merely conclusory and unsupported by competent evidence tending to establish [its] essential elements . . . are insufficient" to state a prima facie case (Alvarez v Prospect Hosp., 68 NY2d 320, 325 ). "Whether the claim is grounded in negligence or medical malpractice, '[w]here medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is a required element of a prima facie case'" (Tatta v State of New York, 19 AD3d 817, 818 [3d Dept 2005], lv denied 5 NY3d 712 , quoting Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 ; Trottie v State of New York, 39 AD3d 1094, 1095 [3d Dept 2007]).
Here, Movant has not provided the affidavit of a medical expert in support of his allegations of medical malpractice and/or medical negligence nor has Movant even provided any medical records showing that he received negligent medical treatment or that Movant even suffered any injury at all (see Matter of Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006] [affirming Court of Claims' denial of motion for permission to file a late claim for medical malpractice where the movant "provided no medical records or expert medical proof to support his allegations of medical malpractice"]). Additionally, Movant's submission is bereft of any evidence establishing a causal relationship between Defendant's conduct and any purported injury. Accordingly, Movant's claims sounding in medical malpractice and medical negligence are without merit.
Therefore, upon balancing all of the factors in the Court of Claims Act section 10 (6), it is hereby:
ORDERED that Motion No. M-95172 is granted insofar as it seeks to allege a cause of action for failure to provide a safe workplace; and it is further
ORDERED that Motion No. M-95172 is otherwise denied; and it is further
ORDERED that Movant shall file with the office of the Clerk of the Court a proposed Claim against the State of New York for failure to provide a safe workplace and pay the filing fee or file a motion, affidavit, or certification pursuant to CPLR 1101(2) , and serve a copy of the proposed Claim upon the New York State Attorney General in accordance with Court of Claims Act §11 (a) (ii) within sixty (60) days of the date of the filing of this Decision and Order, as such date may be effected and extended by the Administrative Order of Acting Presiding Justice Richard E. Sise dated March 16, 2020, which tolls such time limitation period, and until such order expires.
May 6, 2020
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims
The Court has considered the following in deciding this motion:
(1) Notice of Motion for Permission to File a Late Claim, dated January 9, 2020.
(2) Motion for Permission to File a Late Claim, dated December 16, 2019, with attachments.
(3) Affirmation of Christopher J. Kalil, Esq., Assistant Attorney General, in Opposition to Motion for Permission to File a Late Claim, dated February 14, 2020.
1. Movant attaches two documents to his motion entitled "Proposed Claim." The first document is an inmate claim form with a handwritten "Proposed" above the pre-typed word "Claim." The second document is form notice of intention to file a claim. Movant has stricken the pre-typed "Notice of Intention to File a Claim" and has handwritten "Proposed Claim." These documents contain largely the same allegations and, for purposes of this motion, will be collectively considered as the proposed claim. However, to the extent that these documents deviate from one another, the Court will refer to them as "Claim Form" and"Notice of Intention Form," respectively.
2. Movant's request for poor person relief within his application for permission to file a late claim is denied. Application for a reduction of the court's filing fee pursuant to CPLR 1101 (f) is made simultaneous with the filing of the claim and is premature at this juncture (see Ford v State of New York, UID No. 2017-045-032 [Ct Cl, Lopez-Summa, J., Aug. 4, 2017]; Aguilera v State of New York, UID No. 2000-009-404 [Ct Cl, Midey, Jr., J., May 4, 2000]).