Pro se inmate's motion for permission to late file claim is denied as all of the factors to be considered weighed against movant's motion.
|Claimant short name:||CRISALLI|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||PATRICK CRISALLI, Pro Se|
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: Wendy E. Morcio, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 27, 2019|
|See also (multicaptioned case)|
Movant Patrick Crisalli, an inmate proceeding pro se, moves the Court for permission to file a late claim pursuant to Court of Claims Act § 10 (6). According to the proposed claim, defendant negligently provided slippery and unsafe weight equipment at Collins Correctional Facility (Collins) and failed to provide adequate medical care at Gowanda Correctional Facility (Gowanda) and at Collins. Defendant opposes the motion.
A motion for permission to file and serve a late claim must be brought "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" (Court of Claims Act § 10 ). A negligence action against a private citizen would have to be commenced within three years of accrual of the claim (CPLR 214), while an action based on medical malpractice must be brought within two years and six months of accrual (CPLR 214-a). Accordingly, a motion for permission to late file a negligence claim must be brought within three years of accrual of the negligence and a motion to late file a claim based on medical malpractice must be brought within two years and six months of accrual of the malpractice. Movant filed this motion to late file a claim on April 29, 2019. The negligence cause of action accrued on June 11, 2017 when movant was injured, while the medical negligence and/or medical malpractice claim accrued on June 12, 2017, June 21, 2017 and on June 26, 2017, when movant's dressing was changed at Gowanda and at Collins. Thus, the present motion is timely whether based on negligence or on medical malpractice.(1)
The Court of Claims is vested with broad discretion to grant or deny permission to late file a claim (Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). In determining whether to grant permission to late file a claim, the Court must consider, among other factors, "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the [movant] has any other available remedy" (Court of Claims Act § 10 ). The enumerated statutory factors are not exhaustive and the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 ).
The first factor to be considered by the Court is whether the delay in filing a claim was excusable. Movant alleges that he was not aware of the short filing period and that his lack of knowledge was compounded by his incarceration. Ignorance of the law and/or incarceration are not acceptable excuses for failing to timely file a claim (Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv denied 99 NY2d 589 ). This factor weighs against movant's motion. The lack of an excusable delay, however, is only one of the factors to be considered.
The next three factors of notice, opportunity to investigate and prejudice are intertwined and may be considered together (Brewer v State of New York, 176 Misc2d 337 ). Movant alleges that defendant had notice of the essential facts and an opportunity to investigate as employees of Collins and Gowanda were allegedly present. An accident/injury report was completed shortly after the accident occurred (Movant's Exhibit B). According to this report, movant lost control of a dumbbell in his left hand and as he attempted to catch the dumbbell, it fell smashing the third and fourth fingers of his left hand. Nothing in this report puts defendant on notice that movant would subsequently allege that there was anything wrong with the weight equipment. This report further indicates that movant's injury was not witnessed by the staff.
In addition, movant attaches to his motion papers as Exhibit A documents reflecting the deterioration of the metal on some of the benches discovered some six months after movant's accident. Nothing in these documents establish that defendant had timely notice or an opportunity to investigate. More importantly, movant is alleging that the bench he was using to press weights was slippery; he is not alleging that the bench was unstable or otherwise operationally defective due to deteriorating metal.
Movant also attaches as Exhibit K, a copy of minutes taken at a meeting held on August 24, 2017. These minutes mainly discuss bathroom, music equipment, chairs in the visit room and inmate money accounts. Under additional items, however, there is a reference indicating that the composite is slippery and inquiring if the benches could be painted with some kind of grip. By memos dated August 28, 2017, September 5, 2017 and January 26, 2018, Correction Officer Houle and Recreation Program Leader (RPL2) Raiman responded that any non-slip adhesive such as padding and/or tape cannot be used as they can harbor MERSA and that inmates can wipe down the benches with a towel. Again, nothing in these documents would serve to notify defendant that it should investigate this accident further as all available information seemed to indicate that movant caused his own accident. Further, defendant argues that it will be prejudiced by the two year delay in commencing this claim as there are no witnesses to the weight equipment accident and as one of the nurses who changed movant's dressing is no longer employed at the facility. These factors weigh against movant's motion.
The most important factor to consider is merit as it would be futile to permit a claim to be filed which was subject to dismissal (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]). It is movant's burden to show that the proposed claim is not patently groundless, frivolous or legally defective and that there is a reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc2d 1 ). While this standard places a heavier burden upon a party who has filed late, this standard does not require movant to establish the merit of his claim or to overcome all legal objections before the Court will permit the filing of a late claim (Id. at 11-12). Here, movant alleges negligence regarding the weight equipment at Collins and medical negligence or the medical malpractice of the medical staff at Gowanda and at Collins.
The State has a duty to maintain its facilities in a reasonably safe condition (Preston v State of New York, 59 NY2d 997 ). The State, however, is not an insurer of the safety of its inmates and negligence cannot be inferred from the mere happening of an accident (Killeen v State of New York, 66 NY2d 850 ). Where, as here, movant alleges the existence of a dangerous condition (a slippery bench), he is required to show that the defendant either created the dangerous condition or had actual or constructive notice of the condition (Heliodore v State of New York, 305 AD2d 708 [3d Dept 2003]). The facts presented on this motion do not support movant's allegations. First, the evidence does not support the existence of a dangerous condition. According to the accident/injury report (Movant's Exhibit B), movant lost control of the dumbbell in his left hand as he was sitting up after pressing two 70 lb. dumbbells. As the dumbbell fell, movant attempted to grab the dumbbell, smashing his two fingers. There is no mention in the report of any slippery condition or of any issue with the equipment. Moreover, there is no allegation in the proposed claim and no evidence submitted to even suggest that the State either created any dangerous condition or had actual or constructive notice of any dangerous condition. Movant's allegations of negligence with respect to the weight area do not have the appearance of merit.
Movant also alleges medical negligence or medical malpractice by the State's staff at Gowanda and at Collins. According to the medical records provided (Movant's Exhibits C, E, F, G and H), movant was injured on June 11, 2017 and was taken that same day to the Erie County Medical Center (ECMC). He was released from ECMC later that day with instructions to "[l]eave the dressings intact until seen by the orthopedic clinic." From ECMC movant was admitted to the infirmary at Gowanda. The next day, while still in the infirmary at Gowanda, there is a note indicating that movant's dressing was changed (Movant's exhibit E). Movant returned to Collins on June 12, 2017 and was seen on June 13, 2017 where it was noted that he was able to move all his fingers and had no problems. The dressing was changed again on June 21, 2017 at Collins where it was noted that movant's dressing had come off when movant was making his bed. The dressing was changed again at Collins on June 26, 2017, where it was noted that movant was scheduled for the orthopedic clinic the following day (Movant's Exhibit G). The hand specialist and orthopedist concluded that there was no need for movant to be seen for another appointment unless drastic changes occured. Movant further argues that his sutures did not dissolve, causing infections. When movant was seen, however, the nurse indicated that no suture was found (Movant's Exhibit H-11).
Insofar as movant's allegations of medical negligence relate to the medical treatment he received at Gowanda and at Collins, the cause of action alleged is one for medical malpractice and not one for simple negligence (McDonald v State of New York, 13 AD3d 1199 [4th Dept 2004]). In order to establish the appearance of merit in a medical malpractice cause claim, movant must show that defendant deviated from the accepted standard of medical care and that the departure was a proximate cause of the injury (Mullally v State of New York, 289 AD2d 308 [2d Dept 2001]). General allegations of medical malpractice are insufficient (Torns v Samaritan Hosp., 305 AD2d 965 [3d Dept 2003]). Here, an expert medical opinion affidavit is needed to demonstrate that the changing of movant's dressing at Gowanda and/or Collins and the alleged existence of a suture departed from accepted medical practice and standards and that the changing of the dressing and/or the possible existence of a suture caused movant injury (Matter of Perez v State of New York, 293 AD2d 918 [3d Dept 2002]).
Finally, at paragraph 36 of the proposed claim, movant alleges that all of the State personnel mentioned in the proposed claim violated movant's rights under the New York State Constitution and under the Constitution of the United States. The Court of Claims is a court of limited jurisdiction. It does not have jurisdiction to consider Federal Constitutional claims, including alleged civil rights violations which may be brought pursuant to 42 USC §1983, albeit in another Court (Brown v State of New York, 89 NY2d 172 ). Insofar as movant's proposed claim asserts a State Constitutional claim, it too must fail. A State Constitutional claim may only be pursued in the Court of Claims where no other remedy is available to enforce movant's rights (Martinez v City of Schenectady, 97 NY2d 78 ). Here, movant may raise his constitutional claims in Federal Court.
The Court concludes that movant has failed to establish the appearance of merit with respect to a negligence cause of action regarding the weight equipment or a medical malpractice cause of action or a constitutional cause of action. Thus, the all-important merit factor weighs against movant's motion.
Another factor to consider is whether movant has another remedy. In reviewing the underlying facts, it appears as if movant may not have another remedy. This factor weighs in favor of movant's motion.
Where, as here, the excuse offered for the delay is inadequate and the proposed claim is of questionable merit, denial of a motion for late claim relief is appropriate (Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). Accordingly, movant's motion for permission to late file a claim is denied.
In addition to the motion for late claim relief, movant has requested that he be permitted to proceed as a poor person and that the Court appoint an attorney to represent him. This motion has been rendered moot by this Court's denial of movant's motion to late file a claim. Regardless, movant's motion would have been denied. Other than a filing fee, which can be reduced upon application, there are no other fees or costs associated with the prosecution of a claim in the Court of Claims. Moreover, the proposed claim seeks money damages only and as such, does not rise to the level of a grievous forfeiture nor does it demonstrate the loss of any fundamental right that would justify this Court appointing an attorney to appear on movant's behalf (Matter of Smiley, 36 NY2d 433 ).
Based on the foregoing, movant's motion no. M-93909 is denied in its entirety.
August 27, 2019
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 affidavits of Patrick Crisalli sworn to April 20, 2019, with annexed Exhibits A-M;
2. Opposing affidavit of Assistant Attorney General Wendy E. Morcio sworn to June 4, 2019.
1. In paragraphs 14 and 15 of movant's proposed claim, movant seems to be trying to assert an intentional tort claim against Deputy Superintendent for Program Services (DSP) Kelly directly or a claim against the State for the intentional acts of DSP Kelly. Individuals are not proper defendants in the Court of Claims, even if they are employed by the State (Smith v State of New York, 72 AD2d 938 [4th Dept 1979] affd 59 NY2d 718 ). If, however, movant was attempting to allege an intentional tort against the State, a motion to late file an intentional tort cause of action would have to be denied as untimely as the motion was not brought within one year of accrual of the claim (Court of Claims Act § 10 (6) and CPLR 215).