Claimant's motion for late claim relief. Claimant assaulted in Pilgrim Psychiatric Center. Claims for negligent hiring only.
|Claimant short name:||BELLARDINI|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption on claims 131444 and 131277 have been amended, sua sponte, to reflect the State of New York as the proper defendant.|
|Claim number(s):||133904, 131444, 131277|
|Judge:||Gina M. Lopez-Summa|
|Claimant's attorney:||David Grossman & Associates, PLLC
By: David Grossman, Esq.
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: John L. Belford, IV, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 14, 2020|
|See also (multicaptioned case)|
The following papers were read and considered by the Court on this motion: Claimant's Notice of Motion; Claimant's Affirmation with annexed Exhibits 1-3; Defendant's Affirmation in Opposition; Claimant's Reply Affirmation; and Claimant's Supplemental Affirmation in Support with annexed Exhibits A-B.
Claimant, Mitchell Bellardini, has brought this motion seeking an order granting leave to file a late claim pursuant to Court of Claims Act (CCA) § 10 (6). Additionally, claimant is requesting that the claims he previously filed, Claim 131444 and Claim 131277, be considered notices of intention to file a claim. Defendant, the State of New York, has opposed claimant's motion to file a late claim.
As a initial matter the Court grants claimant's application to have Claim 131444 and Claim 131277 converted to notices of intention to file a claim. As a result, Claims 131444 and 131277 are dismissed without prejudice pursuant to CPLR 3217 (b).
Claimant alleges in his proposed claim (Cl Exh 3) that on March 4, 2018 at approximately 10:00 p.m. he was injured after being attacked by another resident at Pilgrim Psychiatric Center in Crisis Residence Building 72. Claimant contends that his attacker was known to be violent and that defendant's staff failed to intervene and protect him during the attack. Claimant explicitly states that he is not bringing a claim based on any allegations of medical malpractice. Claimant sets forth a litany of allegations sounding in negligence which arise out of defendant's failure to protect patients housed at its facility.
It is well settled that "[t]he Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim" (Matter of Brown v State of New York, 6 AD3d 756, 757 ). In determining whether relief to file a late claim should be granted the Court must take into consideration the factors set forth in Court of Claims Act § 10(6) (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 ). The factors are not necessarily exhaustive, nor is the presence or absence of any particular one controlling (id.). Those factors are whether the delay in filing the claim was excusable; whether the defendant had notice of the essential facts constituting the claim; whether the defendant had an opportunity to investigate; whether the defendant was substantially prejudiced; whether the claim appears to be meritorious and whether the claimant has any other available remedy. A proposed claim to be filed, containing all of the information set forth in CCA § 11, shall accompany any late claim application.
Claimant does not offer any legally acceptable excuse for the delay in the filing of his claim. However, lack of an acceptable excuse, alone, is not an absolute bar to a late claim application (Matter of Carvalho v State of New York, 176 AD2d 317 [2d Dept 1991]). A reasonable excuse for untimely service is only one of several factors taken into consideration by the Court when considering whether to allow late filing of a claim and is not by itself determinative.
The next three factors, notice, an opportunity to investigate and prejudice are interrelated and as such will be considered together. Given the long procedural history of this case, the Court finds that defendant had timely notice of the essential facts underlying the claim, had an opportunity to investigate the matter and would not be substantially prejudiced by the delay in the filing of the claim. Consequently, the Court finds that the balance of these factors weigh in claimant's favor.
The next factor to be assessed is whether claimant has any other available remedy. In this case, claimant may have an available remedy against his assailant. As such this factor weighs in defendant's favor.
The most significant issue to be considered is that of merit. To permit the filing of a legally deficient claim would be an exercise in futility (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).
In order for a claim to "appear to be meritorious": (1) it must not be patently groundless, frivolous, or legally defective, and (2) the court must find, upon a consideration of the entire record, including the proposed claim and any affidavits or exhibits, that there is reasonable cause to believe that a valid cause of action exists. ...[T]he court need only determine whether to allow the filing of the claim, leaving the actual merits of the case to be decided in due course. While this standard clearly places a heavier burden on a claimant who has filed late than upon one whose claim is timely, it does not, and should not, require him to definitively establish the merits of his claim, or overcome all legal objections thereto, before the court will permit him to file (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]).
Defendant is under a duty to exercise reasonable care to protect patients at its facilities and prevent them from being harmed (Dawn VV v State of New York, 47 AD3d 1048 [3d Dept 2008]; Harris v State of New York, 117 AD2d 298 [2d Dept 1986]). Operators of medical facilities have a duty to safeguard patients from injuries measured by the capacity of the patient to provide for his or her own safety (N.X. v Cabrini Med. Ctr., 97 NY2d 247 ). The degree of reasonable care owed to such individuals is measured by the patient's physical and mental ailments as known to the hospital officials, physicians and employees (Dawn VV v State of New York, 47 AD3d 1048 [3d Dept 2008]). The scope of a hospital's duty is circumscribed by those risks which are reasonably foreseeable (N.X. v Cabrini Med. Ctr., 97 NY2d 247 ). Claimant has established, for the purposes of this motion, that his claim has merit to proceed for a breach of this duty.
However, the Court notes that, 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 [2d Dept 2018]). Claimant did not allege that defendant's employees were acting outside of their scope of employment and any exceptions to the above general principle do not apply in this case (id.). Thus, to the extent claimant asserted a claim for negligent hiring, retention, supervision or training it is without merit.
Based upon the foregoing and having considered the statutory factors enumerated in Court of Claims Act § 10(6), the Court finds that the factors favor claimant's application. Thus, the Court hereby grants claimant's motion to file a late claim.
Accordingly, claimant has sixty (60) days to file and serve the proposed claim(2) , together with payment of the appropriate filing fee, pursuant to Court of Claims Act §§ 11 and 11-a. Said sixty (60) days shall commence upon the expiration date of Administrative Orders in which the Chief Administrative Judge prohibited filings of new claims such as this claim. Further reference is also made to Executive Order 202.8 signed by the Governor on March 20, 2020 and any extensions thereof with regard to statutory deadlines and time frames.
Additionally, Claims 131444 and 131277 are dismissed without prejudice pursuant to CPLR 3217 (b) and (c).
May 14, 2020
Hauppauge, New York
Gina M. Lopez-Summa
Judge of the Court of Claims
2. Claimant is directed to amend the title of the proposed claim (Cl Exh A) as a claim prior to filing and serving the document.