Defendant's motion to dismiss the claim pursuant to CPLR 215 (3) and Court of Claims Act 10 (3-b) as time-barred, and pursuant to Court of Claims Act 11 (b) as jurisdictionally defective for failure to adequately state the nature of the claim, is denied where claim was served within time periods set forth in Court of Claims Act 10 (2) and 10 (3) and adequately states causes of action for wrongful death and negligence; claimant's cross-motion to serve and file an amended claim is granted.
|Claimant(s):||TRACY YVONNE COOPER as Administrator of
the Estate of TERRY L. COOPER, JR.
|Claimant short name:||COOPER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||BERNSTEIN CLARKE & MOSKOVITZ PLLC
BELDOCK LEVINE & HOFFMAN LLP
By: Joshua S. Moskovitz, Esq.
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
By: Christina Calabrese, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 17, 2019|
|See also (multicaptioned case)|
Defendant moves to dismiss the claim on the following grounds: Failure to timely serve the claim as purportedly required by CPLR 215 (3) and Court of Claims Act 10 (3-b); and failure to adequately state the nature of the claim as required by Court of Claims Act 11 (b). Claimant opposes defendant's motion to dismiss the claim and cross-moves for leave to amend the claim. Defendant opposes the claimant's cross-motion.
The claimant is the mother of decedent Terry L. Cooper, Jr. (Cooper) and was appointed administrator of Cooper's estate on July 26, 2016. Claimant served a notice of intention to file a claim on August 17, 2016, stating that the nature of the claim was "wrongful death; conscious pain and suffering; assault; battery; unlawful seizure; intentional, reckless, and negligent infliction of emotional distress; negligence and gross negligence; negligent hiring; negligent retention; negligent training; negligent supervision; negligent discipline; and deprivation of privileges and immunities under the Constitution of the State of New York and the United States Constitution."
The notice of intention further stated that the claim arose on May 19, 2016, when Cooper "died in the custody of the Department of Corrections and Community Supervision at Clinton Correctional Facility following an altercation with Corrections Officers."
As noted, the notice of intention was served on defendant on August 17, 2016, within ninety days of the alleged wrongful acts and omissions of defendant, which allegedly occurred on May 19, 2016.
The claim alleges that "Cooper died on May 19, 2016 while he was incarcerated at Clinton Correctional Facility." The claim seeks to "recover damages for the wrongful acts and/or neglect on the part of the State and its agents, which caused Mr. Cooper's death." The claim was served on defendant on May 18, 2018, within two years of its accrual on May 19, 2016.
The claim further alleges that Cooper was "an inmate at Clinton Correctional Facility, in Clinton, New York, when he was assaulted by one or more New York State Corrections Officers, whose names are unknown at this time. Mr. Cooper died later that day."
The claim continues:
"The Final Autopsy Report describes injuries to Mr. Cooper's face, left shoulder, back, left knee, and right calf. It also states that Mr. Cooper was 'escorted to the medical unit after reported altercation with guards.'
The autopsy further concluded that Mr. Cooper died due to 'cardiorespiratory arrest consistent with acute exacerbation of chronic asthma.' It states that when Mr. Cooper was 'being escorted to the medical unit ... he became short of breath while walking with sudden collapse and loss of consciousness.' The autopsy also reflects that Mr. Cooper had a '[h]istory of asthma since childhood with history of inhaler use during incarceration.'
Mr. Cooper's death was the result of the injuries he suffered from the altercation with corrections officers and the ensuing negligence and/or indifference to his obviously serious medical need. Mr. Cooper was known to have a history of asthma, which required an inhaler, and any reasonable person would have realized that needed emergency medical attention when he collapsed and lost consciousness. Had he received that attention, he would not have died.
Mr. Cooper experienced pain and suffering before he became unconscious. His estate and decedents have and will continue to suffer substantial injury in damages from his wrongful death."
In moving for dismissal, defendant argues that the claim alleges wrongful death based on causes of action sounding in assault, battery and excessive force and that such causes of action are intentional torts which were required to have been interposed within one year of accrual pursuant to Court of Claims Act 10 (3-b) and CPLR 215 (3).
In opposing the defendant's motion to dismiss, the claimant contends that the claim "sounds in wrongful death and negligence, which carry two-year statute of limitations."
Court of Claims Act 10 (2) provides as follows:
"A claim by an executor or administrator of a decedent who left him or her surviving a husband, wife or next of kin, for damages for a wrongful act, neglect or default, on the part of the state by which the decedent's death was caused, shall be filed and served upon the attorney general within ninety days after the appointment of such executor or administrator, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the death of the decedent. In any event such claim shall be filed and served upon the attorney general within two years after the death of the decedent."
Court of Claims Act 10 (3) provides that:
"A claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim."
The defendant's motion to dismiss the claim as untimely is denied. The essential allegations of the claim, set forth in detail above, state causes of action for wrongful death based upon "a wrongful act, neglect or default, on the part of the state by which the decedent's death was caused" (Court of Claims Act 10 ), and for conscious pain and suffering caused by defendant's negligence (Court of Claims Act 10 ). Each of the causes of action was required to be served within two years of accrual. The record demonstrates that the causes of action for wrongful death and negligence were timely served.
To the extent that the defendant contends that one or more of the wrongful acts which caused, or contributed to, the death of the claimant could be characterized as intentional and would thus constrict the wrongful death cause of action service period from two years to one year, that contention is rejected by the Court.
Defendant also argues that the claim should be dismissed because the claim fails to set forth the nature of the claim as required by Court of Claims Act 11 (b), thus depriving the Court of jurisdiction.
Court of Claims Act 11 (b) provides that:
"The claim shall state the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed."
A claim against the State is permissible only as a result of the State's waiver of sovereign immunity and the statutory requirements conditioning suit must therefore be strictly construed (Kolnacki v State of New York 8 NY3d 277, 280 ). The Kolnacki court noted that the requirements of section 11 (b) are "substantive conditions upon the State's waiver of sovereign immunity" (quoting Lepkowski v State of New York, 1 NY3d 201, 207 ) and that the failure to satisfy any of the conditions is a jurisdictional defect (Kolnacki, 8 NY3d at 280-281). The Kolnacki decision stresses that "nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary" (Kolnacki, 8 NY3d at 281).
The standard of review in assessing whether a claim complies with section 11 (b) as to adequately stating the nature of the claim is well-settled:
"What is required is not absolute exactness, but simply a statement made with sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances. The statement must be specific enough so as not to mislead, deceive or prejudice the rights of the State. In short, substantial compliance with section 11 is what is required . . . . Conclusory or general allegations of negligence that fail to adduce the manner in which the claimant was injured and how the State was negligent do not meet its requirements" (Heisler v State of New York, 78 AD2d 767, 768 [4th Dept 1980]; see Cendales v State of New York, 2 AD3d 1165, 1167 [3d Dept 2003]; Sega v State of New York, 246 AD2d 753, 755 [3d Dept 1998], lv denied 92 NY2d 805 ).
After careful review, the Court finds that the allegations of the claim contain sufficient definiteness to enable the defendant to investigate the claim promptly and to ascertain its liability under the circumstances and, additionally, are sufficiently specific not to mislead or deceive the defendant or prejudice the defendant's rights.
The claim adequately complies with the substantive pleading requirements of section 11 (b) of the Court of Claims Act.
Claimant cross-moves to serve and file an amended claim providing a more detailed and amplified statement of the claim. CPLR 3025 (b) provides for the amendment of a pleading by a party either by stipulation or leave of court. "Leave shall be freely given upon such terms as may be just" (CPLR 3025 [b]). "[I]f the amendment is meritorious and does not cause prejudice or surprise to the nonmoving party, the determination is a discretionary matter which will not be disturbed absent abuse" (Matter of Seelig, 302 AD2d 721, 723 [3d Dept 2003]; see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 ).
The amendments appear meritorious and are based upon the "Final Report of the New York State Commission of Correction" (State Report) into the death of Cooper, issued on June 26, 2018. Claimant did not receive the State Report until August 2018, after the claim was served. Defendant has not specifically challenged the merit of the proposed amendments.
Prejudice to the nonmoving party is shown where that party is "hindered in the preparation of its case or has been prevented from taking some measure in support of its position" (Pritzakis v Sbarra, 201 AD2d 797, 799 [3d Dept 1994]; see Smith v Haggerty, 16 AD3d 967, 968 [3d Dept 2005]).
Defendant's opposition to claimant's cross-motion fails to show that defendant would be prejudiced in defending the new factual allegations of the proposed amended claim. The proposed factual allegations in the amended claim relate back to the relevant factual allegations of the claim and are based on the State Report. As such, they cannot be said to cause defendant surprise.
The defendant's motion to dismiss the claim is denied. Claimant's cross-motion to serve and file an amended claim is granted. Claimant is directed to serve and file his amended claim within forty-five (45) days of the filing of this Decision and Order.
April 17, 2019
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Defendant's Notice of Motion, filed November 13, 2018;
2. Affirmation of Christina Calabrese, dated November 17, 2018[sic], and attached exhibits;
3. Claimant's Notice of Cross-Motion, filed January 23, 2019;
4. Affirmation of Joshua S. Moskovitz, dated January 22, 2019, and attached exhibits;
5. Affirmation in Opposition of Christina Calabrese, dated February 19, 2019;
6. Affirmation in Reply of Joshua S. Moskovitz, dated March 11, 2019, and attached exhibits.