New York State Court of Claims

New York State Court of Claims
BONNETTE v. THE STATE OF NEW YORK, # 2017-044-575, Claim No. 108849, Motion No. M-90784


Motion for permission to file/serve late answer granted based upon reasonable excuse and apparent meritorious defense.

Case information

UID: 2017-044-575
Claimant(s): VAL BONNETTE
Claimant short name: BONNETTE
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 108849
Motion number(s): M-90784
Cross-motion number(s):
Claimant's attorney: VAL BONNETTE, pro se
BY: James E. Shoemaker, Assistant Attorney General
Third-party defendant's attorney:
Signature date: October 13, 2017
City: Binghamton
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, a self-represented litigant,(1) filed this claim alleging causes of action in negligence and negligent medical treatment. Defendant State of New York (defendant) previously moved to dismiss the claim, arguing that it was untimely (Motion No. M-68171). Court of Claims Judge Marin granted the motion in part and dismissed all causes of action except for those alleging "improper medical care relating to and following both the March 22, 2002 slip and fall and the June 15, 2002 fall" (Bonnette v State of New York, UID No. 2004-016-018 [Ct Cl, Marin, J., May 3, 2004] at 4).(2) Defendant recently moved for partial summary judgment. Claimant did not respond. Nevertheless, because the motion papers did not contain a copy of the answer and one was not on file with the Court, the motion was denied, without prejudice (Bonnette v State of New York, Ct Cl, June 2, 2017, Schaewe, J., Claim No. 108849, Motion No. M-89709). Defendant now moves for permission to file and serve a late answer. Claimant has not responded.

The Court, in its discretion, may extend the time to answer or compel the acceptance of a late answer "upon such terms as may be just and upon a showing of reasonable excuse for delay or default" (CPLR 3012 [d]). A defendant seeking such an extension of time must generally establish a reasonable excuse for the default as well as a meritorious defense to the action (Dinstber v Allstate Ins. Co., 75 AD3d 957 [3d Dept 2010]). "To that end, '[w]hether there is a reasonable excuse for a default is a discretionary, sui generis determination to be made by the [C]ourt based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits' " (Rickert v Chestara, 56 AD3d 941, 942 [3d Dept 2008], quoting Harcztark v Drive Variety, Inc., 21 AD3d 876, 876-877 [2d Dept 2005]).

In support of its motion to extend the time to answer, defendant has submitted the affirmation of Assistant Attorney General (AAG) James E. Shoemaker who states that defendant was served with a notice of intention on June 30, 2003 by certified mail, return receipt requested. The notice of intention alleged a cause of action for denial of medical care on April 27, 2003 and April 29, 2003 and was assigned reference number OAG# 03-009695-O. Shoemaker indicates that on January 30, 2004, defendant was served with a claim by certified mail, return receipt requested. The claim was filed with the Clerk of the Court on January 30, 2004 and assigned Claim No. 108849. The claim asserted causes of action relating to a slip and fall on March 22, 2002 and improper medical care with respect to the fall, as well as causes of action pertaining to a fall on June 15, 2002 and improper medical care concerning that incident as well. Shoemaker states that in lieu of answering, defendant moved to dismiss the claim on March 9, 2004. As set forth previously herein, Judge Marin granted the motion in part, by limiting the claim to causes of action for improper medical care relating to and following both the slip and fall on March 22, 2002 and the fall on June 15, 2002. The Decision and Order was filed on June 1, 2004 and defendant served claimant with a copy (with notice of entry) on June 16, 2004.

AAG Shoemaker notes that in June 2004, he left his position with the Attorney General's Office and this claim was assigned to another AAG. However, it appears that the newly assigned AAG did not file and serve an answer. On September 10, 2007, AAG Shoemaker returned to employment with Attorney General's Office, and shortly thereafter was re-assigned defense of this claim. In December 2016, AAG Mark Sweeney submitted the previously-mentioned motion for partial summary judgment which was denied. AAG Shoemaker states that defendant did not realize the claim had not been answered until it received the Court's Decision and Order pertaining to the summary judgment motion. Defendant made this motion upon receipt. Defendant candidly acknowledges that the only excuse for not providing an answer was law office failure.

The Court finds that defendant's failure to file and serve an answer was not wilful. Admittedly, 13 years have elapsed since defendant's initial default. However, little (if any) action had taken place on this claim while claimant was incarcerated. While it is unquestionable that defendant must have - or at least should have - become aware of the failure to answer when AAG Sweeney made the motion for partial summary judgment in December 2016, claimant has responded neither to the motion for partial summary judgment nor to this motion. Claimant's failure to respond to either motion indicates a lack of concern which the Court will not override. Moreover, in light of that failure to respond, the Court does not discern any such prejudice. Accordingly, the Court finds that defendant has established a reasonable excuse for the default.

The Court must now address the issue of whether there is a meritorious defense. "It is fundamental law that [defendant] has a duty to provide reasonable and adequate medical care to the inmates of its prisons" (Rivers v State of New York, 159 AD2d 788, 789 [3d Dept 1990], lv denied 76 NY2d 701 [1990]). Doctors who are providing care to inmates are subject to liability pursuant to traditional rules of medical malpractice, regardless of whether the physicians are an employee of a facility or independent contractors (id.). However, a medical facility is generally liable for the medical malpractice only of its own employees as opposed to malpractice committed by independently contracted doctors practicing within the facility (see Hill v St. Clare's Hosp., 67 NY2d 72, 79 [1986]; Friedland v Vassar Bros. Med. Ctr., 119 AD3d 1183, 1184 [3d Dept 2014]).

In his claim, claimant alleged that on March 22, 2002, he fell on the gymnasium floor and suffered injuries to his left wrist, hand and arm. On June 15, 2002, claimant fell while working in the mess hall. Claimant stated that he suffered a broken hand in the first fall and was also injured in the second fall. He asserted that as a result of his injuries, he required an operation at Ellenville Regional Hospital on April 10, 2002 and a second operation at Saint Agnes Hospital on June 13, 2003. Claimant claimed that defendant and its "agents,"(3) including Ellenville Regional Hospital and its Dr. Katz, as well as Dr. Magill of Saint Agnes Hospital, were all negligent in their care of him.(4)

In support of this motion to file and serve a late answer, defendant has submitted a proposed answer containing a general denial of the allegations as well as three affirmative defenses. Defendant's first proposed affirmative defense asserts that claimant's injuries may be the result of the culpable conduct of a third party for whom defendant is not responsible. As support for this affirmative defense, defendant has included a copy of an operative report prepared on Ellenville Regional Hospital letterhead and dated June 14, 2002. This report indicates that Dr. Howard Katz performed an open reduction, internal fixation of the "[f]racture fourth metacarpal left."(5) Defendant has submitted radiology reports for X rays taken at Saint Agnes Hospital as well as copies of the "OR Nursing Documentation Record" and claimant's Short Stay form and operative notes for the June 13, 2003 operation at Saint Agnes.(6) AAG Shoemaker has also listed websites for The Orthopedic & Sports Medicine Practice of Manhattan, Howard Katz, MD ( and University Orthopaedics, Richard M. Magill, M.D. ( The Court has reviewed the websites and finds that both Katz and Magill are associated with private entities offering orthopaedic services. The evidence before the Court supports an inference that both physicians may have been independent contractors for whom the defendant potentially is not liable. Accordingly, the first affirmative defense is appropriate.

Defendant's second proposed affirmative defense is that "defendant took actions which were privileged as being discretionary determinations made . . . within the scope of . . . duties as a public official."(7) In other words, defendant asserts that the allegedly wrongful conduct was discretionary and subject to the doctrine of governmental immunity. "It is well[-]settled that where the State engages in a proprietary function such as providing medical and psychiatric care, it is held to the same duty of care as private individuals and institutions engaged in the same activity" (Rattray v State of New York, 223 AD2d 356, 357 [1st Dept 1996]). Because claimant's allegations do not support any inference that the medical staff's conduct is subject to immunity, the second proposed affirmative defense lacks merit.

Defendant's third proposed affirmative defense is that claimant's injuries may be the result of his own culpable conduct. It is possible that evidence could exist which would indicate that claimant contributed to the severity of his injuries and damages, for example by noncompliance with medical directives. However, it is defendant's burden on this motion to set forth evidence from which claimant's negligence could be inferred. Defendant has attached some of claimant's medical records from Ellenville Regional Hospital, Saint Agnes Hospital, Westchester Medical Center, and Albany Medical Center. However, none of these records contain any evidence indicating any culpable conduct on claimant's part. Accordingly, the Court finds that this defense lacks merit.

In conclusion, the Court finds that defendant has set forth a reasonable excuse for the default in failing to timely file and serve an answer as well as a meritorious defense to the action. Accordingly, defendant's motion is granted to the extent that the State may file and serve an answer containing the first affirmative defense as set forth in the proposed answer. The answer shall be filed and served within 30 days of the date of filing of this Decision and Order.

October 13, 2017

Binghamton, New York


Judge of the Court of Claims

The following papers were read on defendant's motion:

1) Notice of Motion filed July 13, 2017; Affirmation of James E. Shoemaker, AAG, dated July 10, 2017, and attached exhibits.

Filed Papers: Claim filed on January 30, 2004.

1. At the time he filed and served this claim, claimant was in the custody of the Department of Corrections and Community Supervision (DOCCS) at Woodbourne Correctional Facility.

2. The Court also denied claimant's motion to proceed as a poor person and for assignment of counsel (Bonnette, UID No. 2004-016-018).

3. Claim at 7.

4. Claimant alleges that Dr. Katz was also an employee of DOCCS health care services.

5. Affirmation of AAG James E. Shoemaker, dated July 10, 2017, in Support of Motion, Exhibit I.

6. Id., Exhibits J, K, and L.

7. Id., Exhibit H at 2.