Motion to serve and file a Claim late pursuant to CCA § 10(6) granted in part.
|Claimant(s):||RICHARD GREENE, #14-A-4796|
|Claimant short name:||GREENE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||Caption amended to reflect the State of New York as the proper defendant.|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Richard Greene, #14-A-4796, Pro Se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Belinda A. Wagner, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||May 3, 2018|
|See also (multicaptioned case)|
For the reasons set forth below, the application of pro se Movant, Richard Greene, to serve and file a late Claim pursuant to Court of Claims Act § 10(6) is granted in part.
The proposed Claim is attached to the Motion papers as part of Exhibit 4. Claim No. 129163 was filed with the office of the Clerk of the Court on January 12, 2017 and served upon the Attorney General on January 30, 2017. By Decision and Order dated June 21, 2017, the Court dismissed that Claim on the grounds that the Notice of Intention Claimant served upon the Attorney General failed to meet the specificity requirements of Court of Claims Act § 11(b) and, thus, did not extend Claimant's time to serve and file the Claim, resulting in the Claim being untimely served and filed pursuant to Court of Claims Act § 10 (Greene v State of New York, UID No. 2017-040-067 [McCarthy, J., June 21, 2017]). Thereafter, Movant sought permission to serve and file a late Claim pursuant to Court of Claims Act § 10(6). This Court denied the Motion, without prejudice, as Movant failed to submit a proposed Claim as required by Court of Claims Act § 10(6) (Greene v State of New York, UID No. 2017-040-082 [McCarthy, J., July 7, 2017]).
The proposed Claim alleges two causes of action. The first relates to two medical grievances Movant filed. He asserts that his medical needs were not timely and properly met for more than one year resulting in damage to his liver. The second cause of action relates to two additional grievances Movant filed regarding not being paid overtime and for retaliation. The proposed Claim asserts that it is a "New York State Constitutional Tort Claim" and that Defendant violated Movant's rights under the State Constitution, and also asserts causes of action for negligence, medical malpractice, slander, libel, and involuntary servitude (proposed Claim, ¶ 2). Movant asserts that he filed two grievances regarding healthcare issues on November 19, 2015 and January 15, 2016 and that he exhausted his administrative remedies in regard thereto on April 13, 2016 and May 25, 2016, respectively (id., ¶¶ 6, 7). It is asserted that Defendant did not properly treat Movant's medical issues related to "Chronic Hepatitis C," causing damage to his liver (id., ¶ 8). Movant further alleges that, when he received a prescription for medication, he was supposed to receive it for 85 days and that he only received it for 83 days (id., ¶¶ 18, 19).
Movant asserts as his second cause of action that, on May 23, 2016, he was advised by the Correction Officer in the draft processing area, his assigned work area, to return to his housing unit as he was being removed from the work program (proposed Claim, ¶ 2(2) ). Movant asserts that he began working in the draft processing area in November 2015 and that the officer in charge required him to process inmates' property in and out of the facility. Movant asserts this is the officer's job (id., ¶¶ 11, 12, 15). Movant asserts it was an abuse of authority to allow an inmate to perform an officer's job (id., ¶ 26). Movant further asserts that he filed a grievance because he was not paid overtime and was required to do the work of a Correction Officer, and that, in retaliation, he was removed from his position (id., ¶¶ 5, 35, 37, 38). Movant then filed another grievance regarding the retaliation and, during the course of that investigation, Movant asserts that he was defamed (id., ¶¶ 8, 36, 39).
Pursuant to Court of Claims Act § 10(6), it is within the Court's discretion to allow the filing of a late claim if 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. Here, the Movant, in his affidavit in support of his Motion, is asserting several causes of action, one for medical issues that accrued on July 12, 2016 and the other for discrimination/retaliation, which he is basing on a violation of the New York State Constitution, and negligence that accrued on May 23, 2016 (Claim,¶¶ 3, 25). The statute of limitations for medical malpractice is two and a half years (CPLR § 214-a) and for constitutional torts and negligence is three years (CPLR § 214). Thus, the Court concludes that, based upon the information provided in the proposed Claim, the statute of limitations had not yet expired as to those causes of action. Movant also asserts causes of action for libel and slander. The Statute of Limitations for those causes of action is one year (CPLR § 215) and has expired. Thus, the Motion is denied as to libel and slander as untimely.
Next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 ). However, the burden rests with 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 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
The first factor to be considered is whether the delay in filing the Claim was excusable. Here, Movant asserts that he did not serve and file a timely Claim because of his lack of knowledge of the filing requirements and his status as an inmate. Lack of knowledge of the Court's filing requirements is not a reasonable excuse (Modern Transfer Co. v State of New York, 37 AD2d 756 [4th Dept 1971]; Fowx v State of New York, 12 Misc 3d 1184[A] [Ct Cl 2006]). In addition, confinement to a correctional facility is not an acceptable excuse for failure to timely file a claim (Matter of Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006]). However, 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 v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., supra 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. Defendant does not argue lack of notice of the essential facts, lack of opportunity to investigate, or that it will be substantially prejudiced by a delay in filing a claim (see Affirmation in Opposition of Belinda A. Wagner, Esq., Assistant Attorney General, ¶ 6). Those factors, therefore, weigh in Movant's favor.
The fifth factor to be considered is whether Movant has another remedy available. It appears that Movant does have at least a possible alternate remedy against the individual employees he asserts were negligent and/or committed medical malpractice.
The sixth, final 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, subject to dismissal, even if other factors tended to favor the request (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], lv granted 16 NY3d 703 , affd sub nom. Donald v State of New York, 17 NY3d 389 , quoting Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]). It is Movant's burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., supra at 11-12).
Regarding the proposed cause of action alleging improper medical care and treatment, "[i]t is fundamental law that the State 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 . In order to maintain an action for injuries sustained while under the care and control of a medical practitioner and/or medical facility, "a party may proceed upon a theory of simple negligence, or upon the more particularized theory of medical malpractice" (Hale v State of New York, 53 AD2d 1025 [4th Dept 1976], appeal denied 40 NY2d 804 ). "The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by [laypersons], or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts" (Miller v Albany Med. Ctr. Hosp., 95 AD2d 977, 978 [3d Dept 1983]; see Twitchell v MacKay, 78 AD2d 125, 127 [4th Dept 1980]).
To the extent the proposed cause of action alleges medical malpractice, the merit of the claim must be patently revealed by medical records or supported by an expert affidavit (see Matter of Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006]; Matter of Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002]; Rosario v State of New York, 8 Misc 3d 1007[A] [Ct Cl 2005]; Vespucci v State of New York, UID No. 2007-038-505 [Ct Cl, DeBow, J., Feb. 16, 2007]; Jackson v State of New York, UID No. 2007-029-001 [Ct Cl, Mignano, J., Jan. 10, 2007]). The proposed Claim alleges negligent acts relating to Movant's medical treatment at Franklin Correctional Facility. While Movant has submitted some of his medical records, he has not submitted an expert affidavit stating that Defendant's actions departed from the accepted standard of care (see Matter of Robinson v State of New York, supra at 950; Rosario v State of New York, supra). Thus, the merit of any allegations of medical malpractice in his motion papers is not established. Further, in the absence of an expert affidavit, there is no support for his contention that Defendant committed medical malpractice, or that such alleged malfeasance or nonfeasance caused injury to him (see Schreck v State of New York, 81 AD2d 882 [2d Dept 1981]). With respect to any medical negligence cause of action, Movant has not provided sufficient facts for the Court to determine if any such actions are within the usual experience and knowledge possessed by laypersons (see Matter of Perez v State of New York, supra at 919).
At this stage of the proceeding, it should be noted the Court generally takes as true factual allegations of Movant. Based upon the entire record, including the proposed Claim, the Court finds that the proposed Claim relating to the negligence cause of action asserting Movant was performing work he should not have been, was not paid overtime for the work, and then was retaliated against, has the appearance of merit. Movant need only establish the appearance of merit; he need not prove a prima facie case at this stage of the proceedings.
Movant also asserts a constitutional tort cause of action based on violations of his Federal constitutional rights. No action may be maintained in this Court against the State for alleged Federal constitutional violations (Shelton v New York State Liquor Auth., 61 AD3d 1145, 1151 [3d Dept 2009]; Lyles v State of New York, 194 Misc 2d 32, 35-36 [Ct Cl 2002], affd 2 AD3d 694, 696 [2d Dept 2003], affd on other grounds 3 NY3d 396 ; Matter of Thomas v New York Temporary State Comm. on Regulation of Lobbying, 83 AD2d 723 [3d Dept 1981], affd 56 NY2d 656 ). To the extent that Movant asserts Federal constitutional violations, his remedy lies elsewhere. Similarly, any cause of action Movant asserts against the State pursuant to 42 USC § 1983 must be dismissed since the State is not a "person" under the statute and the Court of Claims, therefore, lacks jurisdiction over such claims (Brown v State of New York, 89 NY2d 172, 185 ; Blake v State of New York, 145 AD2d 1336, 1337 [3d Dept 2016], lv denied 29 NY3d 908 ; Flemming v State of New York, 120 AD3d 848 [3d Dept 2014]; Shelton v New York State Liq. Auth., supra at 1148-1149; Walker v State of New York, UID No. 2017-015-242 [Ct Cl, Collins, J., June 21, 2017]). As this Court has no jurisdiction over these causes of action, the Court concludes that Movant has failed to establish that they have the appearance of merit.
In Brown v State of New York (89 NY2d 172 ), the Court of Appeals "recognized that, when certain requirements are met, a violation of the [New York State] Constitution may give rise to a private cause of action" (Waxter v State of New York, 33 AD3d 1180, 1181 [3d Dept 2006]; see Wagoner v State of New York, UID No. 2008-029-014 [Ct Cl, Mignano, J., Apr. 2, 2008]). In Martinez v City of Schenectady (97 NY2d 78 ), however, the Court of Appeals made it clear that Brown establishes a "narrow remedy," applicable in cases where no other remedy is feasible to provide citizens with "an avenue of redress" when their private interests have been harmed by constitutional violations (Martinez v City of Schenectady, supra at 83; Waxter v State of New York, supra at 1181). Where an adequate remedy could be provided, however, " 'a constitutional tort claim … is [not] necessary to effectuate the purposes of the State constitutional protections … [invoked] nor appropriate to ensure full realization of [claimants'] rights' " (Bullard v State of New York, 307 AD2d 676, 679 [3d Dept 2003], quoting Martinez v City of Schenectady, supra at 83).
In the present case, recognition of the State constitutional cause of action is neither necessary nor appropriate to ensure the full realization of Movant's rights, because the alleged wrongs can be redressed by an alternative remedy, namely, either in a Federal Court action asserting violations of the Federal Constitution, or in action for negligence and/or medical malpractice as set forth above. In this instance, Movant has failed to establish that no other cause of action is available as an avenue of redress. Thus, the Court determines that Movant has failed to establish that this cause of action has merit.
In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in Movant's favor only as to the negligence cause of action asserting Movant was performing work he should not have been, was not paid overtime for the work, and then was retaliated against. The mix of circumstances presented by this case fall well within the remedial purposes of the amendments to the Court of Claims Act enacted in 1976 (L 1976, ch 280), which was designed to vest in the Court of Claims broader discretion than previously existed to permit late filing, indicated a strong concern that litigants with meritorious claims be afforded their day in court (Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, supra at 1036). Movant has provided ample basis for a favorable exercise of this Court's discretion to grant him leave to file a late claim against the State as set forth above. Therefore, within forty-five (45) days of the date of filing of this Decision and Order, Movant shall file with the office of the Clerk of the Court his proposed Claim only with respect to the causes of action, as set forth above, against the State of New York and serve a copy of the proposed Claim upon the Attorney General personally or by certified mail, return receipt requested. In serving and filing his Claim, Movant is directed to follow all of the requirements of the Court of Claims Act, including § 11-a, regarding the filing fee, and the Uniform Rules for the Court of Claims.
May 3, 2018
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered on Movant's application for permission to file a late claim:
Notice of Motion, Affidavit in Support,
Exhibits attached, and Memorandum of Law 1
Affirmation in Opposition, Exhibit attached 2
2. When Movant numbered the paragraphs in his Claim, he started again at number 1 when he talks about his "second cause of action."