New York State Court of Claims

New York State Court of Claims
PITTMAN v. THE STATE OF NEW YORK, # 2021-040-030, Claim No. 124210, Motion No. M-96353

Synopsis

State Motion for Summary Judgment seeking dismissal of the Claim for lack of subject matter jurisdiction on the basis that the Claim is untimely and fails to state a cause of action denied.

Case information

UID: 2021-040-030
Claimant(s): JAMES PITTMAN 12-A-1849
Claimant short name: PITTMAN
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) : Caption amended to reflect the State of New York as the proper defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 124210
Motion number(s): M-96353
Cross-motion number(s):
Judge: CHRISTOPHER J. McCARTHY
Claimant's attorney: Barry D. Haberman, Esq.
Defendant's attorney: LETITIA JAMES
Attorney General of the State of New York
By: Anthony Rotondi, Esq., AAG
Third-party defendant's attorney:
Signature date: July 26, 2021
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

For the reasons set forth below, Defendant's Motion for summary judgment pursuant to CPLR 3212(2) for lack of subject matter jurisdiction, that the Claim is untimely, and failure to state a cause of action is denied.

This Claim was filed in the Office of the Clerk of the Court on April 11, 2014, when Claimant was appearing pro se. Prior thereto, Claimant served a Notice of Intention to File a Claim (hereinafter, "Notice of Intention") upon Defendant on November 18, 2013 (Affirmation of Anthony Rotondi, Esq., Assistant Attorney General [hereinafter, "Rotondi Affirmation"], 3, and Ex. A attached thereto). The Notice of Intention asserts that, on April 13, 2013, Claimant had surgery on his left shoulder, after which he received physical therapy for a little more than two weeks. He resumed a building maintenance training class in September 2013 at Franklin Correctional Facility (hereinafter, "Franklin"). Claimant asserts that, during one of the classes, he was given a direct order to knock down a drywall booth and that, while performing the task, he experienced severe pain and discomfort in his injured shoulder. Claimant states that he was called to medical for an x-ray on October 8, 2013, but nothing further has been done and he is in constant pain.

Subsequently, Claimant served the Claim upon Defendant on April 14, 2014 (Rotondi Affirmation, 4, and Ex. B attached). Claimant alleges, in Paragraph 2 of the Claim, that he had surgery on his left shoulder at a medical center in Malone, New York and that he received a little more than two weeks of physical therapy. Claimant further alleges that Dr. Cahill authorized him to return to building maintenance classes in September 2013, knowing that Claimant's shoulder was still healing. Claimant asserts that he advised class Instructor Marion about the condition of his shoulder and that it was healing. Claimant alleges that, during the class, he was given a direct order to knock down a drywall booth. During the task, Claimant asserts that he experienced a great deal of pain in his injured left shoulder. The following day, he was sent to emergency sick call. Claimant was examined by a nurse, who issued a medical excuse, restricting Claimant from work and other strenuous activities (Claim, 2). The Claim states that the Claim accrued on an unspecified date in September 2013 (Claim, 4).

Defendant asserts, in support of its Motion, that there are several reasons this Claim should be dismissed. Defendant asserts that, to the extent that Claimant alleges that the surgery was improperly performed, neither the Notice of Intention, nor the Claim, alleges that any State employees performed the surgery or breached any standard of care. Thus, Defendant asserts, the Claim fails to state a cause of action (Rotondi Affirmation, 5).

Defendant also asserts that Claimant failed to allege a date of accrual for any act of negligence, medical or otherwise. In the Notice of Intention, the accrual date is alleged to be April 13, 2013. However, this, according to Claimant, is the date of the surgery performed at an outside hospital. Defendant alleges there is no date of accrual for the date Claimant allegedly injured his shoulder during maintenance class. In the Claim, Claimant only alleges that the date of accrual is September. Thus, Defendant states, the Claim fails to comply with Court of Claims Act 11(b), which requires, in pertinent part, that "[t]he claim shall state the time when and place where such claim arose, the nature of same, [and] the items of damage or injuries claim to have been sustained" (Rotondi Affirmation, 6). Defendant further asserts that Claimant's failure to provide an accurate date of accrual in the Claim deprives the Court of jurisdiction over this matter and that the Claim must be dismissed on this ground (id., 7).

Defendant asserts that the Claim is also untimely. Defendant states the Claim alleges that the April 13, 2013 surgery was improperly performed (Rotondi Affirmation, Ex. B, 2). This allegation is not contained in the Notice of Intention that was served on November 18, 2013. The first time this allegation is made is over a year after the surgery, on April 14, 2014 (Rotondi Affirmation, Ex. B), more than 90 days after the date of accrual (Court of Claims Act 10[3]). Defendant also asserts that is true of the allegation that Claimant was improperly cleared to return to class. This allegation is not made in the Notice of Intention, only in the Claim. While Claimant does not state a date of accrual for this allegation, he does state he returned to class in September 2013, at least five months before he served his Claim (Rotondi Affirmation, 8).

Finally, Defendant asserts that the Notice of Intention appears to allege deliberate indifference, a cause of action not pursued in the Claim. The allegations in the Claim are not alleged in the Notice of Intention. Thus, the Notice of Intention did not extend Claimant's time in which to bring a claim and the three allegations in the Claim are untimely (Rotondi Affirmation, 10).

In opposition to the Motion, Claimant asserts in his affidavit (attached to the Affirmation of his counsel, Barry D. Haberman, Esq. [hereinafter, "Haberman Affirmation"]), that, as to the Notice of Intention, Claimant is seeking damages as a result of being given a direct order to knock down drywall at a time when Claimant was still recovering from surgery on his left shoulder (in September 2013). He asserts that the date of the surgery was on or about April 15, 2013 (Affidavit of James Pittman [hereinafter, "Pittman Affidavit"], 7). He further asserts that he specifically alleged in his Claim that his shoulder was re-injured in September 2013, while he was incarcerated under the care and control of Defendant at Franklin (id., 13). He also states that, since the Notice of Intention specifically references being injured in September 2013, and that the Claim is filed within two (2) years of September 2013, the Claim is timely filed pursuant to Court of Claims Act 10(3) (id., 16).

Claimant further advises the Court that, as a result of the injuries to his shoulder, he had additional surgery on December 14, 2016. The surgical procedures performed were: (i) Left shoulder arthroscopy with acromioplasty; and (ii) Open rotator cuff repair (see Ex. 4 attached to Haberman Affirmation; Pittman Affidavit, 20). Moreover, Claimant advises that he had further surgery on August 29, 2017, with respect to a left rotator cuff tear and a labral tear (id., 21-22).

Finally, Claimant asserts that his damages are the direct result of Defendant's negligence as it relates to the Defendant ordering him to knock down a wall in September 2013 while he was still suffering the effects of a left labral tear and rotator cuff tear as diagnosed on April 13, 2013 (Pittman Affidavit, 24). Claimant concludes "my Claim is that my shoulder was severely further injured when I was ordered to knock down the [drywall] (at a time when my shoulder was already injured) and this further injury led to additional surgeries, and pain and discomfort and loss of use of my left shoulder, which continues to this day, along with a loss of income from a resulting inability to work" (id., 25).

Pursuant to the Court of Claims Act provisions applicable to personal injury actions, Claimant was required to file and serve his Claim within 90 days from the date of accrual unless a written Notice of Intention was served upon the Attorney General within such time period. In that case, the Claim itself was required to be filed and served upon the Attorney General within two years after the accrual of the Claim (Court of Claims Act 10[3]). In either case, Claimant was required to initiate action within 90 days of the Claim's accrual. Here, Claimant has met the above requirement in that Defendant states that the Notice of Intention was served upon it on November 18, 2013, within 90 days of September 1, 2013 (the earliest date in September when Claimant could have been directed to knock down the drywall booth). If the Notice of Intention is defective, however, it does not extend Claimant's time to serve and file the Claim and, thus, the Claim filed in the office of the Clerk of the Court on April 11, 2014 and served upon Defendant on April 14, 2014 would be untimely. Court of Claims Act 11(b) requires that "[t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed" (see Demonstoy v State of New York, 130 AD3d 1337 [3d Dept 2015]). The statute further states that a Notice of Intention to file a claim "shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated." At the same time, pursuant to Court of Claims Act 11(c), any such defect is waived unless it is raised with particularity as an affirmative defense, either by motion to dismiss prior to service of the responsive pleading or in the responsive pleading itself (see Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).

In its Answer, filed in the office of the Clerk of the Court on May 19, 2014, Defendant asserted, among its affirmative defenses, as its First Affirmative Defense, that the Notice of Intention is insufficient to extend the time for serving and filing the Claim, as it fails to state the specific time and date of accrual of the cause of action in violation of Court of Claims Act 11, and, thus, the Court lacks jurisdiction over the Claim. Defendant asserted, as its Second Affirmative Defense, that the Notice of Intention is insufficient to extend the time for filing and serving the Claim, as it fails to comply with Court of Claims Act 11, by failing to include any particularization of the nature of the cause of action and Defendant's conduct in regard to it, and, therefore, there is no proper claim over which the Court had jurisdiction. Defendant asserted, as its Fourth Affirmative Defense, that the Claim alleges causes of action not set forth in the Notice of Intention, thus, those causes of action are not within the jurisdiction of the Court. Defendant asserted, as its Fifth and Sixth Affirmative Defenses, that the Claim is untimely, in that neither the Claim nor a Notice of Intention was served within ninety (90) days of accrual of the Claim, as required by Court of Claims Act 10(3), 10(3-b), and 11. Defendant asserted, as its Seventh Affirmative Defense, that the Court lacks subject matter jurisdiction over the Claim and personal jurisdiction over the Defendant as the Claim fails to comply with Court of Claims Act 11 by failing to state the specific time when and the date of accrual of the cause of action alleged in the Claim.

Regarding Defendant's argument that the Claim fails to state a cause of action regarding allegedly improperly performed surgery, as Claimant failed to allege in either the Notice of Intention, or the Claim, that the surgery was performed by State employees, Claimant makes clear, in his opposition to the Motion, that he is not seeking damages for the surgery. Rather, he states, he is seeking damages for the further injury he sustained after being given a direct order to knock down the drywall. Therefore, the Court denies this portion of Defendant's Motion as Moot, as Claimant is not seeking damages for the original surgery.

Regarding Defendant's argument that the Notice of Intention appears to allege a cause of action for deliberate indifference, which is not set forth in the Claim, as stated above, Claimant asserts that he is seeking damages for the injury he sustained after being given a direct order to knock down the drywall. Therefore, the Court denies this portion of Defendant's Motion as Moot, as Claimant is not seeking damages for deliberate indifference(3) .

The Court next addresses Defendant's argument that the only date of accrual asserted in the Notice of Intention is April 13, 2013, the date Claimant asserts his shoulder surgery was performed. Defendant asserts that no date of accrual is alleged regarding the alleged injury in the maintenance class. Defendant further asserts that the only alleged date regarding Claimant's injury in the Claim is an unspecified date in September 2013.

It is well established that the failure to satisfy the substantive pleading requirements of Court of Claims Act 11(b) is a jurisdictional defect that requires dismissal of the Claim (Kolnacki v State of New York, 8 NY3d 277, 280-281 [2007]; Lepkowski v State of New York, 1 NY3d 201, 206-207 [2003]; Czynski v State of New York, 53 AD3d 881, 882-882 [3d Dept 2008], lv denied 11 NY3d 715 [2009]). As stated by the Appellate Division, Third Department in Morra v State of New York (107 AD3d 1115, 1115-1116 [3d Dept 2013]):

Although "absolute exactness" is not required (Heisler v State of New York, 78 AD2d 767, 767 [4th Dept] [1980]), the claim must " 'provide a sufficiently detailed description of the particulars of the claim to enable [defendant] to investigate and promptly ascertain the existence and extent of its liability' " (Robin BB. v State of New York, 56 AD3d 932, 932-933 [3d Dept] [2008], quoting Sinski v State of New York, 265 AD2d 319, 319, [2d Dept] [1999]). However, defendant is not required "to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski v State of New York [supra, at 208]). Failure to abide by these pleading requirements constitutes a jurisdictional defect mandating dismissal of the claim, even though this may be a harsh result (see Kolnacki v State of New York, [supra] at 281; Dinerman v NYS Lottery, 69 AD3d 1145, 1146 [3d Dept] [2010], lv dismissed 15 NY3d 911 [2010]).

While Defendant contends that the Notice of Intention does not contain a date of accrual for any alleged negligent act, in reading the Notice of Intention, the Court notes that Claimant stated that the facility resumed school in September 2013 and that, during one of his classes in the building maintenance training class, he was given a direct order to knock down a drywall booth and re-injured his shoulder. He subsequently was "examined by medical" and was advised he would "be on medical idle until [he saw] the doctor" (Notice of Intention, unnumbered page 1).

Claimant did not specifically state a date of accrual, however, it is clear to the Court that Claimant states that the building maintenance classes started in September and that, during a class, he was injured. He further states that he did not have x-rays taken until October 8, 2013. The Court understands Claimant to state that he was injured in September 2013 in the Notice of Intention. Claimant also stated in his Claim that the Claim "accrued on the __ day of September, 2013" (Claim, 4).

While Defendant contends that the Notice of Intention and Claim lack particularity, the Court notes that Defendant has submitted only the affirmation of counsel, and the affirmation does not assert that Defendant has attempted to conduct an investigation into Claimant's allegations and has been unable to do so. It seems to the Court that Defendant would have been aware, by now, that an investigation could not be conducted based upon the allegation contained in a Claim filed and served in 2014. Rather, Defendant only asserts that the information provided is insufficient and lacks particularity. The "guiding principle" and "purpose" of Court of Claims Act 11(b) is to permit Defendant to investigate the claim and gauge the State's potential liability (see Davilla v State of New York, 140 AD3d 1415, 1416 [3d Dept 2016]). The description must be particular enough " 'so as not to mislead, deceive, or prejudice the rights of [defendant]' " (Demonstoy v State of New York, supra at 1337, quoting Rodriguez v State of New York, 8 AD3d 647, 647 [2d Dept 2004]). The Court finds that the Notice of Intention and Claim provide a sufficiently detailed description of the time when the Claim arose to enable Defendant to investigate and promptly ascertain the existence and extent of its liability and meet the pleading requirements of Court of Claims Act 11(b) (Morra v State of New York, supra; Robin BB. v State of New York, supra; Sinski v State of New York, supra; Myers v State of New York, UID No. 2019-015-177 [Ct Cl, Collins, J., Aug. 7, 2019]).

Based upon the foregoing, the Court finds and concludes that the Notice of Intention and Claim meet the particularity requirements of Court of Claims Act 11(b), and the State's Motion for summary judgment seeking dismissal on the grounds that the Court lacks subject matter jurisdiction, that the Claim is untimely, and that the Claim fails to state a cause of action is denied.

July 26, 2021

Albany, New York

CHRISTOPHER J. McCARTHY

Judge of the Court of Claims

The following papers were read and considered by the Court on Defendant's Motion for summary judgment to dismiss the Claim:

Papers Numbered

Notice of Motion, Affirmation in Support,

& Exhibits Attached 1

Affirmation in Opposition, Affidavit, &

Exhibits Attached 2

Filed Papers: Claim, Answer


2. Defendant moved to dismiss the Claim pursuant to CPLR 3211(a)(2) and (7) for lack of subject matter jurisdiction and for failure to state a cause of action. However, Defendant had served a Verified Answer to the Claim prior to making the Motion. Thus, the Motion was deemed a CPLR 3212 Motion for summary judgment based upon CPLR 3211(a)(2) and (7) grounds (Oppenheimer v State of New York, 152 AD3d 1006 n. 1 [3d Dept 2017]). By Daily Report, dated April 28, 2021, the Court notified the parties that, pursuant to CPLR 3211(c), it was treating the Motion as one for summary judgment, and adjourned the Motion from April 7, 2021 to May 26, 2021 to allow the parties to submit additional information, should they wish.

3. Defendant asserts in this portion of the Motion that the three allegations in the Claim are untimely as they are not alleged in the Notice of Intention. The Court has now addressed two of the three purported allegations in the Claim, i.e. improperly performed surgery and deliberate indifference. The third allegation - negligently giving Claimant a direct order to knock down the drywall - will be discussed infra.