Motion for permission to file a Claim late pursuant to CCA § 10(6) granted in part and denied in part.
|Claimant short name:||P.R.|
|Footnote (claimant name) :||Because this proposed Claim involves a victim of a sexual offense, the caption has been amended to give Movant a fictitious name in order to protect his identity. The Chief Clerk is directed to seal the file in Motion No. M-92143 pursuant to Civil Rights Law § 50-b (see Civil Rights Law §§ 50-b , 50-c [private right of action for wrongful disclosure of victim of sexual offense]).|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||P.R., Pro Se|
|Defendant's attorney:||BARBARA D. UNDERWOOD
Attorney General of the State of New York
By: Christina Calabrese, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||August 7, 2018|
|See also (multicaptioned case)|
For the reasons set forth below, Movant's Motion to serve and file a late claim pursuant to Court of Claims Act § 10(6) is denied in part and granted in part.
Movant, pro se, has attached the proposed Claim to the Motion papers. The proposed Claim alleges that, on July 6, 2017, at approximately 2:30 p.m., Movant returned to the Franklin Correctional Facility (hereinafter, "Franklin") from the Alice Hyde Medical Center after a surgical procedure on his scalp. Upon return, Raul Gupta, M.D., issued a prescription for pain medication and for Movant's wounds to be bandaged upon arrival and every 24 hours thereinafter. Nurse Jane Doe failed to give Movant the medication prescribed because she "wasn't gonna let [him] walk around with [Tylenol] with Codeine in [his] pocket" even though Movant was admitted to the facility infirmary overnight upon return. Nurse Jane Doe also failed to bandage Movant's wounds because he had "too much hair." Movant also asserts that, on July 6, 2017, at approximately 6:30 p.m., he was in pain from surgery and requested that Correction Officer (hereinafter, "CO") White speak to medical staff. Movant was informed by medical staff that Nurse Jane Doe ordered that he not be given the prescribed medication. Movant requested to speak to an area supervisor. CO White then threatened Movant with a sexual assault by an inmate, stating that he would "send [Movant] back to Upstate box" and have "Big Bubba" molest Movant. Movant asserts this is a type of sexual harassment, in violation of Department of Corrections and Community Supervision (hereinafter, "DOCCS") Directive #4028A (Proposed Claim, ¶ 2). The proposed Claim further alleges that, on or about July 10, 2017, Movant was called to the Main School Building at Franklin by Sergeant (hereinafter, "Sgt.") John Doe, the area supervisor for the infirmary, on the night of July 6, 2017, for a P.R.E.A.(2) investigation interview. At the interview, the Sergeant threatened retaliation against Movant for writing a grievance against CO White. Movant asserts that Sgt. Doe stated "you know what's going to happen now right[? Y]ou know you have a target on your back for this (grievance)" (id.). Movant further asserts that Sgt. Doe is not authorized to conduct a P.R.E.A. investigation. Movant also asserts that the Sergeant then filed a false report that Movant's grievance "was against [COs]," when the complaint was against CO White, in an attempt to cover up the threats of sexual assault by CO White (id.).
The proposed Claim further asserts that, on or about August 4, 2017, during the breakfast chow run, CO Salz sexually assaulted Movant by putting his hand in Movant's pants through the penis slit of the underwear and groped and lifted the penis and testicles of Movant during a pat frisk, violating standards prescribed in DOCCS Directive #4910(III)(B). It is further asserted that CO Salz began this process by physically assaulting Movant when he slapped Movant in the face. It is alleged that, after the pat frisk, CO Salz ordered Movant to enter the mess hall and shouted "write a grievance about that," in reference to Movant's grievance against CO White (Proposed Claim, ¶ 2). It is further alleged that, on or about August 22, 2017, CO Garceau discussed Movant's complaint against CO Salz with Sgt. Brown in front of Movant and other inmates during the lunch chow run and made sexually suggestive comments, and thereby sexually harassed him (id.).
The proposed Claim also alleges that, on or about September 9, 2017, Movant filed a grievance complaint regarding the Mess Hall incident involving CO Garceau with the Inmate Grievance Program (hereinafter, "IGP"). On September 14, 2017, Movant's grievance was returned to him by the IGP supervisor, J. Tavernier, along with a notice that the grievance was untimely. However, Movant asserts that, pursuant to 7 NYCRR 701.3, DOCCS Directive #4040 § 701.3 and Directive #4028A, a sexual harassment complaint can be filed at any time, thus, making his complaint timely. Movant asserts that Ms. Tavernier was negligent in failing to accept the P.R.E.A. complaint, and also in failing to report the incident to the Watch Commander (Proposed Claim, ¶ 2). Movant further asserts in the proposed Claim that Franklin Superintendent LaClaire was negligent in denying his various grievances (id.).
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. The proposed Claim asserts several causes of action. Movant asserts that the claim accrued on July 6, 2017. Movant asserts a cause of action for failure to provide medical care and treatment. It is not clear if Movant is asserting negligence (CPLR § 214, a three-year Statute of Limitations) or medical malpractice (CPLR § 214-a, a two-year and six months Statute of Limitations), but under either theory, that cause of action is timely asserted. Movant asserts causes of action asserting negligence by Sgt. Doe, Ms. Tavernier, CO Garceau, and Superintendent LaClaire, that are timely within the three year Statute of Limitations. Movant also asserts an intentional tort causes of action for assault by CO Salz (CPLR § 215, a one-year Statue of Limitations). As the alleged assault occurred on August 4, 2017, this cause of action also is timely. The Court concludes that, based upon the information provided in the proposed Claim, the Statutes of Limitations had not yet expired as to any of these causes of action.
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 he was busy trying to get his underlying criminal conviction vacated in Supreme Court, Westchester County and because his knowledge of criminal and civil law is minimal ( Movant's Rebuttal, ¶ 6). 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]). 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 assert in general and conclusory language that it lacks notice of the essential facts, and an opportunity to investigate, and, thus, has been prejudiced by the delay in timely filing the Claim (Affirmation of Christina Calabrese, Esq., Assistant Attorney General, ¶ 6). However, Defendant has not asserted that it cannot conduct an investigation, or that it cannot determine the facts of the Claim. 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, and assaulted him.
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. Movant has not submitted any of his medical records, nor has he 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 provided minimally sufficient facts to show the potential meritoriousness of a negligence cause of action.
The proposed Claim also asserts causes of action for harassment. It is well settled that New York does not recognize a common law cause of action to recover damages for harassment (Wells v Town of Lenox, 110 AD3d 1192, 1193-1194 [3d Dept 2013]; Monreal v New York State Dept. of Health, 38 AD3d 1118, 1119 [3d Dept 2007]; Daulat v Helms Bros., Inc., 18 AD3d 802, 803 [3d Dept 2005]). Thus, the causes of action for harassment lack the appearance of merit.
Movant also alleges causes of action for abuse of process on August 4, 2017 and September 9, 2017. A cause of action "for abuse of process has three essential elements: (1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective" (Curiano v Suozzi, 63 NY2d 113, 116 ). Here, Movant has failed to allege any of the essential elements relevant to abuse of process. Thus, the causes of action for abuse of process lack the appearance of merit.
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, in the proposed Claim relating to the alleged negligence of Sgt. Doe, Ms. Tavernier, CO Garceau, and Superintendent LaClaire, Movant established the appearance of merit; he need not prove a prima facie case at this stage of the proceedings.
The proposed Claim also asserts Movant both was physically, as well as sexually, assaulted by CO Salz on August 4, 2017. As stated above, at this stage of the proceeding, 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 cause of action for physical assault has the appearance of merit. However, with respect to the allegation of sexual assault allegedly committed by CO Salz, a sexual assault perpetrated by an employee is not an act in furtherance of the employer's business "and is a clear departure from the scope of employment, having been committed for wholly personal motives" (N.X. v Cabrini Med. Ctr., 97 NY2d 247, 251 ; see Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933 ; Cornell v State of New York, 46 NY2d 1032 ; Kunz v New Netherlands Routes, Inc., 64 AD3d 956, 958 [3d Dept 2009]; Dia CC v Ithaca City School Dist., 304 AD2d 955, 956 [3d Dept 2003], lv denied 100 NY2d 506 ). Insofar as Movant's proposed Claim is based on the contention that the State is vicariously liable for an alleged sexual assault committed by CO Salz, it lacks merit as a matter of law.
In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in Movant's favor as to the physical assault, medical negligence, and negligence causes of action only. 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 asserting causes of action regarding medical negligence, negligence, and physical assault. 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 those three 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.
August 7, 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,
& Exhibits Attached 1
Affirmation in Opposition 2
Movant's Rebuttal 3
2. Movant does not explain what P.R.E.A. is an abbreviation for.