Claimant's motion seeking permission to amend the notice of intention and claim to assert an additional cause of action or in the alternative, seeking leave to late file a claim is denied.
|Claimant(s):||CHRIS SPARKS, AS GUARDIAN OF AND ON BEHALF OF ROBERT SPARKS|
|Claimant short name:||SPARKS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||SAFTLER & BACHER, PLLC
BY: James W. Bacher, Esq., Of Counsel
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
BY: Edward J. Curtis, Jr., Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||July 20, 2017|
|See also (multicaptioned case)|
The claim arises from an incident that occurred on August 28, 2012 in which claimant Robert Sparks sustained personal injuries as a result of an assault by a resident at the Creedmoor Psychiatric Center (Creedmoor). A notice of intention was served on November 26, 2012 and the claim was filed on August 28, 2014. The defendant served a verified answer on October 7, 2014. On September 9, 2015, Claimant's brother, Chris Sparks, was appointed guardian for Robert Sparks (Claimant). On or about March 22, 2017, a Consent to Change Attorney was filed substituting the law firm of Saftler & Bacher, PLLC, in place of the prior counsel, The Saldarriaga Law Firm. On or about April 17, 2017, the Claimant's new attorneys served a first supplemental verified bill of particulars in which they alleged injuries and damages resulting from negligence and medical malpractice that occurred three days following the incident on August 31, 2012 at the North Shore University Hospital. Claimant previously served a verified bill of particulars on or about January 20, 2016 that made no mention of an incident on August 31, 2012 at the North Shore University Hospital. The Claimant's motion seeks leave to amend the claim to assert an additional cause of action against the defendant in negligence arising out of the defendant's alleged care and supervision of Claimant on August 31, 2012 at the North Shore University Hospital and to add related and foreseeable claims and damages that flowed from the subsequent negligence and medical malpractice. The defendant opposes this motion.
Claimant states in his notice of motion that he seeks permission to amend the claim and pleadings to add an additional cause of action but does not assert the statutory basis for his motion. The affirmation in support by Claimant's attorney references proposed amended pleadings and includes as exhibits a proposed supplemental and/or amended notice of intention to file claim (Exhibit 14), proposed supplemental and/or amended claim (Exhibit 15) and a proposed supplemental and/or amended verified bill of particulars (Exhibit 16). The Court presumes that it is Claimant's intention to move pursuant to CPLR 3025 (b) to seek leave to amend these pleadings, which statute provides that a party may amend his pleading or supplement it by setting forth additional or subsequent transactions or occurrences at any time with permission of the court. Leave to amend is to be freely granted, provided that the proposed amendment will not prejudice or surprise defendant, is not "patently devoid of merit," and is not "palpably insufficient" (Shabazz v Verizon N.Y., Inc., 83 AD3d 815, 815 [2d Dept 2011]; Dmytryszyn v Herschman, 78 AD3d 1108, 1109 [2d Dept 2010]).
Claimant first seeks permission to amend the notice of intention to file claim to assert an additional claim against the defendant for the negligence and medical malpractice that occurred while claimant was being treated for injuries resulting from the assault, these allegedly occurring on August 31, 2012 at the North Shore University Hospital. It has been held that a notice of intention is not a pleading, and that as such, the Court of Claims Act provides no mechanism for amending a notice of intention (see e.g. Camara v State of New York, UID No. 2016-049-023 [Ct Cl, Weinstein, J., June 17, 2016]; Liberty Mutual v State of New York, UID No. 2014-016-022 [Ct Cl, Marin, J., June 24, 2014]; Collins v State of New York, UID No. 2012-038-552 [Ct Cl, DeBow, J., July 11, 2012]). Accordingly, Claimant's request to amend the notice of intention to file claim is denied.
Claimant next seeks leave to amend the claim to assert the additional cause of action. Court of Claims Act § 11 (b) requires, in part, that "[t]he claim shall state the time when and place where such claim arose. . .". Whether a claim complies with Court of Claims Act § 11 (b) is determined by whether there is "sufficient definiteness to enable the State to be able to investigate the claim promptly and ascertain its liability under the circumstances" (Triani v State of New York, 44 AD3d 1032 [2nd Dept 2007]). The State's waiver of immunity from suit is contingent upon the Claimant's compliance with the pleading requirements of Court of Claims Act § 11 (b) (Lepkowski v State of New York, 1 NY3d 201, 206 ). The failure to satisfy any of the pleading requirements is a jurisdictional defect as strict compliance with the Court of Claims Act is necessary (Kolnacki v State of New York, 8 NY3d 277, 281 ). Herein, the claim in its description of the place where the claim arose makes no mention of the Claimant's treatment at the North Shore University Hospital following the August 28, 2012 assault or to the defendant's alleged supervision of Claimant's treatment at this hospital. In addition, all that is stated as to the time when the claim accrued is "August 28, 2012, between 11:30 p.m. and 11:40 p.m.", the time of the assault. As such, the statement in the claim cannot be said to be specific enough to enable the State to be able to investigate what occurred at the North Shore University Hospital.
Furthermore, it has been held that the Court of Claims Act does not require the State "to ferret out or assemble information that section 11(b) obligates the claimant to allege" (Lepkowski, supra at 208). Where there is insufficient detail to enable the State to determine from the claim and/or notice of intention how to commence an investigation, such deficiency is a jurisdictional defect requiring dismissal of the claim (see Sheils v State of New York, 249 AD2d 459 [2d Dept 1998]; Schneider v State of New York, 234 AD2d 357 [2d Dept 1996]).
In response, Claimant alleges in his motion papers that the State is not prejudiced in that during Claimant's transport from Creedmoor to the North Shore University Hospital, he was accompanied by a Creedmoor employee and that the records of Creedmoor contain notations to that effect.(1) Further, it is alleged that after being transferred from the trauma ward at the hospital, Creedmoor employees continued to monitor and provide assistance to claimant and Creedmoor records detailed that involvement. It is also alleged that a Creedmoor employee was present in Claimant's hospital room when claimant was later found on the ground after falling from a chair. As a result of this fall, it is alleged that claimant suffered an "acute hemorrhage" to his brain and went into respiratory failure. Claimant alleges that a representative of Creedmoor was with Claimant throughout his stay at the North Shore University Hospital and that it was at the direction of a Creedmoor employee that he was permitted to be left in a chair, which in turn led to his fall and consequential injuries.(2) However, lack of prejudice is not the standard to be applied with the Court of Claims Act, whose statutory requirements are jurisdictional and to be strictly construed (Kolnacki, supra). As the Claimant's allegations in the claim omit any detail concerning Claimant's subsequent treatment at the North Shore University Hospital or any implication of the defendant's involvement in the management of his care, the allegations do not satisfy the pleading requirements of the Court of Claims Act.
Although not contained within Claimant's notice of motion, it also appears that Claimant is in the alternative seeking permission to serve and late file a claim, citing to Court of Claims Act §§ 10 (8) and 10 (6).(3) Court of Claims Act § 10 (6) provides, in relevant part, that a claimant who fails to timely file and serve a claim may, nevertheless, in the discretion of the court, be permitted to file such claim at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules. Claimant seeks to add a claim in negligence and/or medical malpractice which accrued on August 31, 2012. The applicable statute of limitations for a negligence action is three years (CPLR 214 ) and two and one-half years for a medical malpractice action (CPLR 214-a). However, this motion was not filed until May 26, 2017, well beyond the applicable statutes of limitation. The failure to file this motion for leave to late file a claim within the applicable statute of limitations set forth in the CPLR "creates a jurisdictional defect and the court is without discretionary power to grant nunc pro tunc relief" (Hartsfield v State of New York, UID No. 2016-053-532 [Ct Cl, Sampson, J., August 12, 2016], citing to Bergmann v State of New York, 281 AD2d 731, 733-734 [3d Dept 2001], citing Byrne v State of New York, 104 AD2d 782, 783 [2nd Dept 1984], lv denied 64 NY2d 607 ).
Accordingly, Claimant's motion no. M-90494 seeking permission to amend the notice of intention and the claim or in the alternative, seeking leave to late file a claim is denied.
July 20, 2017
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by the Court:
1. Notice of motion and affirmation of James W. Bacher, Esq., dated May 26, 2017 with annexed Exhibits 1-16;
2. Affirmation in opposition of Edward J. Curtis, Jr., Esq., Assistant Attorney General dated June 9, 2017.
1. Claimant's attorney's affirmation at paragraph 20 and exhibit 10.
2. Claimant's attorney's affirmation at paragraph 22 and 24 through 30 and exhibits 9 and 10.
3. Claimant's attorney's affirmation at paragraph 34 through 38.