New York State Court of Claims

New York State Court of Claims
HOLMES v. STATE OF NEW YORK, # 2019-018-048, Claim No. NONE, Motion No. M-93944


Late claim application denied for failure to show a reasonable excuse or meritorious cause of action for medical malpractice, negligent training or supervision, or violations of Public Health Law 2801 (d) or 2803 (c).

Case information

UID: 2019-018-048
Claimant(s): BARBARA HOLMES As Administrator of the ESTATE OF LILLY DENHAM, Deceased
Claimant short name: HOLMES
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): NONE
Motion number(s): M-93944
Cross-motion number(s):
Claimant's attorney: GREENE, REID & POMEROY PLLC
By: Justin P. St. Louis, Esquire
Defendant's attorney: LETITIA JAMES
Attorney General of the State of New York
By: Kevin A. Grossman, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: August 8, 2019
City: Syracuse
Official citation:
Appellate results:
See also (multicaptioned case)


Movant brings a timely motion seeking permission to file a late claim pursuant to Court of Claims Act section 10 (6) (Court of Claims Act 10 (6); CPLR 214 [5], 214-a). Defendant opposes the motion.

The proposed claim raises allegations of negligence, gross negligence, medical malpractice, negligent training, supervision and deprivation of Decedent's rights pursuant to Public Health Law sections 2801-d and 2803-c and the Mental Hygiene Law. Decedent suffered from schizophrenia and was a resident of Hutchings Psychiatric Center (Hutchings) from 2009 until approximately April 17, 2018. During her stay at Hutchings, Decedent developed a pressure wound and was treated at the State University of New York, Upstate University Hospital (Upstate) from March 31, 2018 through April 1, 2018. Movant indicates that Decedent was transferred back to Hutchings on April 1, 2018 and officially discharged on April 17, 2018. However, the attached medical records indicate that she was readmitted to Upstate on April 4, 2018 for failure to thrive as an adult.(1) Decedent died on December 31, 2018.

On an application for permission to file a late claim, consideration must be given to the six factors listed in Court of Claims Act section 10 (6) and any other relevant factors. A balancing of all of the factors in the discretion of the Court may warrant the granting of the application to file and serve a late claim; no one factor is determinative (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]; Ledet v State of New York, 207 AD2d 965 [4th Dept 1994]).

The first factor is whether the proposed claimant has an acceptable excuse for failing to timely file and serve a claim. Movant's application does not specifically address this factor other than to assert that she consulted with counsel after the time frame to bring a timely claim had passed. Thereafter, it took several weeks to gather the information to bring a motion. Movant brought a late claim motion in September 2018, however, at a conference with the Court in January 2019, it was requested that the motion be withdrawn and resubmitted when a representative was appointed for the estate since Decedent had passed away at that time. Movant has not established a valid excuse for the untimely claim, however, she has made diligent efforts to bring motions for permission to file a late claim.

Turning now to the factors of the State's notice of the facts underlying the proposed

claim, whether it had an opportunity to investigate the facts, and whether it will suffer prejudice if the application is granted. Movant asserts that the State had notice of the underlying facts for this late claim based upon the pressure wound that developed while under the care of Hutchings and based upon the records including pictures that exist. These documents will prevent the State from suffering any prejudice and allow for a full investigation. Additionally, there was only a delay of a few months between the expiration of the 90-day accrual time frame and Movant's filing of the first motion for late claim relief. As a result, the Court finds these factors weigh in favor of granting Movant's application.

The next factor, whether the claim appears to be meritorious, is referred to as the most essential factor. Unlike a party who has timely filed a claim, one seeking permission to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]). Generally, a proposed claim meets this standard if it is not patently groundless, frivolous, or legally defective, and upon consideration of the entire record there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). Undisputedly, the State owes a duty to provide for the "health and care of [its] charges", (Cauley v State of New York, 224 AD2d 381, 381-382 [2d Dept 1996]; Gordon v City of New York, 70 NY2d 839, 840 [1987]) which includes the duty to provide adequate and appropriate medical treatment in accordance with the medical standard of care and also a duty of ordinary care (Matter of Farace v State of New York, 176 AD2d 1228 [4th Dept 1991]; McCrossen v State of New York, 277 AD 1160 [4th Dept 1950]). Movant alleges that her causes of action sound in ordinary negligence, medical malpractice and violations of the statutes Public Health Law sections 2801-d and 2803-c. Despite Movant's assertions, a review of the allegations set forth in the proposed claim make it clear that she is primarily asserting that the staff at Hutchings failed to prevent, recognize, and properly care for Decedent's pressure wounds causing them to develop and become worse. Although Movant has attached some of Decedent's medical records, she has not provided an affidavit from a physician. Where the basis for the claim arises from the rendition of medical care, and whether that care met the standard for proper medical treatment. It is normally outside the realm of knowledge of a lay person. Here, whether Decedent's development of a pressure wound was the result of malpractice or attributable to her deteriorating condition despite proper care involves questions that require medical expertise (Colson v State of New York, 115 Misc 2d 402 [1982]). The issues involve a "substantial relationship to the rendition of medical treatment". (Bleiler v Bondar, 65 NY2d 65, 72 [1985]; Pacio v Franklin Hosp., 63 AD3d 1130 [2d Dept 2009]). Without expert support, Movant has not adequately established the potential merit of a medical malpractice cause of action.

Movant's cause of action for negligent training, supervision, or oversight of staff also must fail, since Movant has not alleged an "independent act of negligence outside the scope of employment" or that the employer "was aware of, or reasonably should have foreseen, the employee's propensity to commit such an act" (Lamb v Stephen M. Baker, O.D., P.C. 152 AD3d 1230, 1231 [4th Dept 2017] quoting Seiden v Sonstein, 127 AD3d 1158, 1160-1161 [2d Dept 2015]). 'Generally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee's negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision or training.' (Decker v State of New York, 164 AD3d 650, 653 [2d Dept 2018] quoting Henry v Sunrise Manor Ctr. for Nursing & Rehabilitation, 147 AD3d 739, 741-742 [2017]).

Despite counsel's assertions, the allegations in the proposed claim do not assert facts to support Defendant's breach of any other ordinary duty, unrelated to the development, care and treatment of Decedent's pressure wounds. No breach of any other duty has been alleged.

Movant also seeks to assert a cause of action under Public Health Law sections 2801-d and 2803-c. Public Health Law section 2801-d provides a statutory right of action for patients in a residential health facility for injuries caused by the deprivation of any right or benefit created or established for the patient's well-being by any contract, state statute, code, rule or regulation or by any applicable federal statute, code, rule or regulation (Public Health Law 2801-d [1]). This cause of action was intended to be in addition to any other remedies available and a violation of Public Health Law section 2803-c is not a prerequisite to bringing such a claim (Public Health Law 2801-d [4]). A residential health care facility is defined in the statute as a nursing home or facility providing health related services (Public Health Law 2801 [3]). Health related services are defined as services in facilities offering lodging, board and physical care, including but not limited to the recording of health information, dietary supervision, and supervised hygienic services (Public Health Law 2801 [4] [b]).

Defendant argues that these sections are not applicable to a psychiatric care facility and relies upon Randone v State of New York, 30 Misc 3d 335 (Ct Cl 2010). In response, Movant's counsel argues that whether the section is applicable can only be made after discovery. Movant's counsel also argues that the medical records from Hutchings support that Decedent received extensive physical care and lodging at the center and Public Health Law should apply. In Randone v State of New York, the Court of Claims, Honorable Terry Jane Ruderman, held that the Hudson River Psychiatric Center was not subject to Public Health Law section 2801-d because the psychiatric centers are under the jurisdiction of the Office of Mental Health and the Mental Hygiene Law. The specific language of Public Health Law sections 2801-d and 2803-c legislative history makes it clear that the statutes were intended to apply to a narrow class of facilities under the jurisdiction of the Commissioner of Health - specifically nursing homes. Judge Ruderman found that there was no indication that the sections were intended to apply to a psychiatric facility principally providing services to a patient's mental disability. The Second Department cited Judge Ruderman's Decision in Randone favorably to find that Public Health Law section 2801-d applies only to nursing homes (Novick v South Nassau Communities Hosp., 136 AD3d 999, 1000 [2d Dept 2016]). In Burkhart v People, Inc., 129 AD3d 1475 [4th Dept 2015], the Fourth Department found that although a group home provides some "physical care" to its residents, it was not a residential health care facility covered by Public Health Law section 2801-d. The Court found that the law was intended to apply to nursing homes and similar facilities governed by Public Health Law (Burkhart, 129 AD3d at 1477).

Since Hutchings Psychiatric Center is covered under the Mental Hygiene Law and provides physical care that is incidental to its primary purpose of providing mental health, as well as the reasons referenced in the cited case law the Court finds that Movant has not shown a potentially viable cause of action under either of these statutory provisions.

The final factor to be considered is whether Movant has any other available remedy. It does not appear that Movant has any other remedy. Movant is directed, if a new application is made, to submit a proposed claim in compliance with CPLR 3014.

Accordingly, based upon the foregoing, Movant's motion is DENIED without prejudice to a new application properly supported.

August 8, 2019

Syracuse, New York


Judge of the Court of Claims

The Court has considered the following in deciding this motion:

1) Notice of Motion.

2) Affidavit of Barbara Holmes, sworn to April 19, 2019, in support, with attachments and exhibits affixed thereto.

3) Affirmation of Justin P. St. Louis, Esquire, in support, with attachments and exhibits affixed thereto.

4) Affirmation of Kevin A. Grossman, Esquire, Assistant Attorney General, in opposition.

5) Reply Affirmation of Justin P. St. Louis, Esquire, in support.

1. Movant's second Exhibit A, medical records, 4/4/2018 page 8.