New York State Court of Claims

New York State Court of Claims
HARRIENGER v. STATE OF NEW YORK, # 2021-058-039, Claim No. 127859

Synopsis

After trial, Defendant found 100% liable for the death of a patient at St. Lawrence Psychiatric Center. Defendant failed to protect the patient from a reasonably foreseeable assault perpetrated by another patient at the facility.

Case information

UID: 2021-058-039
Claimant(s): DAVID A. HARRIENGER, as Administrator of the Estate of ROBERT D. HARRIENGER II
Claimant short name: HARRIENGER
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 127859
Motion number(s):
Cross-motion number(s):
Judge: CATHERINE E. LEAHY-SCOTT
Claimant's attorney: Izzo Law Office, PLLC
By: Janet M. Izzo, Esq.
Defendant's attorney: Hon. Letitia James, New York State Attorney General
By: Thomas Trace, Esq., Associate Attorney
Third-party defendant's attorney:
Signature date: September 3, 2021
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant David A. Harrienger, as Administrator of the Estate of Robert D. Harrienger II seeks damages for the death of his brother, Robert Harrienger II (Harrienger), while he was a patient at the St. Lawrence Psychiatric Center (SLPC).(1) SLPC is under the auspices of New York State Office of Mental Health. Claimant alleges that SLPC failed to properly assess, treat, and supervise another patient, Jose Miranda (Miranda), and that this failure was a proximate cause of Harrienger's death. Specifically, on May 12, 2014, Miranda assaulted Harrienger in the dining room at SLPC, causing injury and ultimately his death.

The liability trial of this Claim was conducted virtually on October 20, 21, and 22, 2020 upon stipulation of the parties.(2) Claimant testified and called eight other witnesses. Claimant offered 30 Exhibits of which 27 were received into evidence by stipulation of the parties. Defendant called one witness and marked 13 Exhibits, Exhibits A through M inclusive, for identification purposes. Exhibits A, B, C, K, L and M were received into evidence by stipulation of the parties. At the conclusion of Claimant's case, Defendant made a motion to dismiss; Claimant opposed; and the Court reserved decision. The Court permitted the parties to submit posttrial memoranda.

After considering the testimony of the witnesses and evidence received at trial, as well as reviewing the applicable law and arguments made by the parties, the Court finds, based upon a preponderance of the credible evidence, that Defendant State of New York is 100% liable for the death of Robert Harrienger II.

FACTS

Evidence adduced at trial revealed Harrienger was involuntarily admitted to SLPC on March 27, 2014. On April 14, 2014, Harrienger voluntarily agreed to continue with his care at SLPC. On that same day, Miranda, was immediately committed to SLPC after serving a term of imprisonment in state prison. Miranda was committed to SLPC based upon the evaluation and recommendation of two psychiatrists. Both Harrienger and Miranda resided on Ward 94 at SLPC. There is no dispute that on May 12, 2014, Miranda assaulted Harrienger in the dining room at SLPC.

Claimant called, among other witnesses, Denise Martin (Martin) and Jessica Thornton (Thornton), who were both mental health treatment aides present in the dining room of SLPC on May 12, 2014. Martin testified she was employed at SLPC since 2007 and received six weeks of educational training, including Preventing and Managing Crisis Situations (PMCS). Thereafter, she engaged in additional hands-on training with patients. Martin further testified that, as a mental health treatment aide, she was responsible for, among other things, completing roll call and supervising patients. Martin described when patients first arrive on her ward at SLPC she would review and complete a form with the patient called an Individual Crisis Prevention Plan. The purpose of this form is to make staff aware of a patient's triggers. Martin explained the form is completed by placing check marks next to any potential triggers, early warning signs, and strategies employed to assist with triggers. If a patient refuses to assist in reviewing and completing the form, that would be noted. Martin also testified this document would be updated during the patient's stay at the facility if staff identified triggers. On April 25, 2014 it was noted that Miranda was noncompliant with his Individual Crisis Prevention Plan, refusing to complete it three times (Ex 7 at 85).

Martin testified she was a mental health treatment aide on Ward 94 and was familiar with Miranda. She described him as noncompliant, anti-social, and unapproachable. As a result of Miranda's incomplete Individual Crisis Prevention Plan, his anti-social behaviors and unapproachability, Martin was not aware of Miranda's triggers. Additionally, Martin was not aware Miranda assaulted or demonstrated aggressive behavior toward staff or other patients while at SLPC.

Martin affirmed she was working in the dining room on May 12, 2014 and observed Harrienger and Miranda in the dining room. Martin testified additional staff members were present in the dining room on that day. Martin explained one staff member was responsible for ensuring all silverware was returned; one staff member was monitoring the serving line; and one staff member was conducting one-on-one supervision with a patient. Martin testified she observed Harrienger singing and laughing loudly while standing in line to receive a second helping of food approximately five feet behind Miranda. Martin had stepped into an atrium area adjacent to the dining room when she heard a commotion. Upon immediately returning to the dining room, she witnessed Miranda "swinging and throwing punches" at Harrienger (Tr 101, line 1).(3) Martin described that when there is a physical altercation between patients, her training required her to wait for help and/or approach the situation safely. A staff member is not permitted to physically come between patients involved in an altercation. Martin believed, as a safe course of action, she could approach Miranda from behind. Martin described that she went behind Miranda, grabbed his arms, pulled him away, and escorted him out of the dining room. Martin further testified that because Thornton was facing Miranda, Thornton could not approach Miranda in a safe manner.

Thornton testified she started working at SLPC in May 2012 and received PMCS training. On May 12, 2014, Thornton was working in the dining room and saw Miranda hit Harrienger. Thornton described the incident consistent with Martin's version of events; to wit: Harrienger and Miranda were in line in the dining room to receive a second helping of food with Harrienger talking and singing to himself. Thornton heard Miranda request Harrienger back up and then seconds later observed Miranda punching Harrienger. Upon witnessing the assault, Thornton pressed an alarm, which was on her person, and waited for assistance. Thornton testified she had minimal interaction with Harrienger and never served as his aide. Thornton also explained she had no interaction with Miranda and was unaware of any violent or aggressive behaviors by Miranda toward staff or other patients.

Dr. Orrin W. Palmer (Dr. Palmer) testified he was employed by SLPC as the Unit Chief psychiatrist in 2014 and was responsible for the care of every patient on Ward 94, including the care of Harrienger and Miranda.

Dr. Palmer explained he was responsible for Miranda's initial intake, risk assessment status, and establishing a course of treatment. Dr. Palmer explained Miranda was incarcerated in a New York State Department of Corrections and Community Supervision (DOCCS) facility and was eligible for parole as he reached his maximum incarceration expiration date; however, two DOCCS' psychiatrists recommended Miranda be involuntarily committed rather than be released to the community. The two DOCCS' psychiatrists certified Miranda's admission on the basis that Miranda posed a substantial threat of harm to himself and others, was noncompliant with medication, had no insight into his mental illness, had limited judgment, and was not able to take care of himself if released, thereby requiring further evaluation, treatment, and stabilization before being released into the community (Ex A at 3, 5).

Dr. Palmer further testified that sometimes past violent behavior is a predictor of future violent behavior (Tr 34, lines 15-18). At the time of Miranda's admission, Dr. Palmer had available to him Miranda's criminal history, which included violent behavior (Tr 33-34; Ex 7 at 27-28). Specifically, Dr. Palmer testified that upon initial intake, he was aware Miranda was paroled in April 2013 for an attempted assault charge and thereafter violated parole for drinking alcohol. However, Dr. Palmer indicated at Miranda's initial intake there was no evidence of violent behavior within the preceding six months. Dr. Palmer also testified the medical description provided by DOCCS and the two psychiatrists was inconsistent with his interview of Miranda upon admission. Dr. Palmer testified that, based upon how Miranda presented to him on April 14, 2014, Miranda did not seem to be at high risk and stratified him as same (Tr 40 lines 12-13).

Dr. Palmer's testimony coupled with Miranda's medical records indicate Miranda had a long, psychiatric history with many hospitalizations, as well as a history of polysubstance dependence, suicidal ideations, noncompliance with medications, lack of insight into his mental illness, limited judgment, and an inability to care for himself (Ex A at 5). Despite stating upon intake that Miranda was recently very psychotic and suicidal, Dr. Palmer found Miranda did not immediately present with psychotic or suicidal ideations. Consequently, Dr. Palmer placed Miranda on ward restrictions, which prohibited Miranda from leaving his ward except for meals or treatment (Ex 7 at 68-69). Additionally, Dr. Palmer ceased the administration of antipsychotic medications to observe Miranda over a period of several days.

Dr. Palmer recalled Miranda punched another patient during his admission at SLPC, but qualified such aggression stating the patient assaulted was not in pain or hurt. Dr. Palmer testified he was aware Miranda did not participate in treatment (Ex 7 at 110) was verbally abusive (id. at 111); was hostile and threatening to staff so much so that a "code orange" was called (id. at 112); stole from two patients, one being Miranda's roommate (id. at 114; Tr 53, lines 16-17); and had an altercation with a male peer (Ex 7 at 121). Dr. Palmer noted in medical charts that Miranda "had intermittent episodes of agitation and violence" (id.). Dr. Palmer testified Miranda was hostile and angry intermittently during his admission at SLPC, refused to participate in any of the programming, remained isolated, and his ward restrictions were never changed (Tr 57, line 17 to Tr 58, line 12). However, Dr. Palmer testified there were no episodes of "violence" in the last 12 days Miranda was at SLPC (Tr 58, lines 23-24). Dr. Palmer defined violence as "episodes of assault or aggression" (Tr 59, line 3).

Dr. Palmer opined that keeping Miranda at the same level of supervision was not a substantial factor in causing Harrienger's assault and ultimate death (Tr 59, lines 16-23). Dr. Palmer testified his initial and continued no risk assessment and ward restrictions were supported by the facts that, in the month of May 2014, Miranda exhibited safe behaviors with no overt aggression, was compliant with his medication, and successfully completed intensive treatments. Additionally, Miranda was inquiring and making plans to visit his sister in Florida upon being discharged. However, upon further questioning, Dr. Palmer reviewed Miranda's medical chart which revealed Miranda did not attend treatment, was not fully compliant with his medications, and was angry he was hospitalized at SLPC.

Mackenzie Palmer (Palmer) testified she was employed as a registered nurse at SLPC in 2014. Palmer explained she was familiar with Harrienger due to his "bubbly personality" from limited interactions with him in the atrium and dining room (Tr 123, lines 14-15). Palmer was not familiar with Miranda and testified that he isolated himself from others. On May 12, 2014, Palmer was assigned to counting and monitoring the silverware in the dining room and estimated between 40 and 50 patients were in the dining room on that day. Palmer further testified she was approximately 20 feet away from Harrienger and Miranda who were in line to receive a second helping of food when she "saw arms flailing" (Tr 133, lines 9-10). Palmer witnessed Martin and Thornton trying to separate Harrienger and Miranda. By the time Palmer reached the area, Harrienger was on the ground and Miranda was being escorted to the atrium. Palmer tended to Harrienger's medical needs while he was on the ground. Palmer described the incident as occurring very suddenly.

Claimant David Harrienger testified he is the brother of Robert Harrienger II and described his brother as a happy person who loved music. He explained his brother had been in and out of psychiatric hospitals a few times usually due to noncompliance with medications. Claimant described that, immediately prior to his hospitalization at SLPC and death, Harrienger was living on his own, had stopped taking his medication and, as a result, was hospitalized. Claimant further testified he was with his brother during the time following the incident of May 12, 2014. Specifically, Claimant observed that Harrienger never regained consciousness; was removed from life support; and died on May 13, 2014 (see Ex 6).

Andrea Arquiett (Arquiett) was working as a registered nurse at SLPC in May 2014 and observed Miranda punch Harrienger. Arquiett testified on May 12, 2014, while engaged in one-to-one oversight of another patient, she heard another staff member state, "break it up" from across the dining room (Tr 147, lines 4-5). As Arquiett approached the area of the incident, she observed Miranda punch Harrienger multiple times. She witnessed Thornton verbally trying to separate the men. By the time she reached the area where the assault took place, Harrienger was on the floor and Miranda was being walked back to the ward with Martin. Arquiett testified she thereafter rendered medical assistance to Harrienger.

Stephen Michael Tucker (Tucker) testified he was a registered nurse employed by SLPC working on Ward 94 in April 2014. Tucker described his duties and responsibilities which included ensuring staff are present for their shift; ensuring all residents are accounted for; providing medications during the shift; monitoring behavioral or medical concerns; and filling out appropriate documentation. Tucker testified that although Harrienger was on Ward 94, he had little interaction with him. However, Tucker generally recalled Harrienger as being a compliant patient, very quiet, reserved, and keeping to himself. Tucker was on the ward floor when the assault by Miranda against Harrienger occurred.

Tucker also testified he was familiar with a document called an "Overt Aggression Scale" (OAS), which he described as a document that records and monitors behaviors which could predict aggressive behaviors. This document identifies escalating aggressive behaviors ranging from levels 0 to 12. Upon questioning, Tucker testified to several incidents that occurred relative to Miranda's behavior which were either not documented or incorrectly documented on the OAS form. Examples include an incident on April 21, 2014 where Miranda was involved in an altercation with a male peer (Ex 7 at 119). Additionally, Tucker testified that the OAS form incorrectly documented the level of Miranda's aggressive behavior on April 28, 2014 when Miranda pounded on and pushed over a television while in an angry state (id. at 145). Tucker also testified the OAS form incorrectly documented Miranda's level of aggression on April 30, 2014 when Miranda made threats against his roommate (id. at 154).

Dr. Daro Largoza (Largoza) was called to testify by Claimant and stated he was working as a physician at SLPC in 2014. Largoza was working on May 12, 2014 and responded to a "Code Blue" (Tr 175, lines 21-24), which was explained by Tucker as an indication there was a medical emergency in the facility (Tr 157, line 13-14). Largoza observed Harrienger lying on the floor and examined him, noting to himself that he "had a bad impression that the patient was not going to make it" (Tr 176, lines 9-10).

Claimant and Defendant each called an expert witness. Dr. Lama Bazzi (Bazzi) was called by Claimant as an expert in the field of psychiatry and forensic psychiatry. After her impressive qualifications as an expert were presented, Bazzi testified as to her opinion within a reasonable degree of psychiatric certainty that Miranda was not properly stratified into an appropriate risk category when classified as "no high risk" upon first entering SLPC. In reaching her opinion relative to Miranda's initial assessment, Bazzi relied upon Miranda's noncompliance with his treatment; his violation of parole for drinking alcohol; his conviction and placement on parole for an attempted assault charge, which she considered a violent act; his lack of insight into his illness and the reason he was sent and/or held at SLPC; and the denial of his symptoms to Dr. Palmer during his initial admission interview, among other things. Bazzi opined Miranda should have been stratified as a "high risk," which would have subjected him to closer supervision.

Additionally, Bazzi testified Defendant did not properly reassess Miranda during his hospital stay nor did Defendant provide an appropriate standard of care during his inpatient hospitalization at SLPC. To that end, Bazzi explained Miranda's substandard treatment while at SLPC, noting escalating verbal and physical aggression which were not met with appropriate responses and/or treatment. Specifically, Bazzi referenced a verbal altercation and threats with a social worker; stealing from his roommate and another resident; violent actions involving a television set; noncompliance with treatment programs and his own treatment team meetings; and isolation, among others. Bazzi opined Defendant did not adequately or appropriately address these significant events and that Miranda's mental health did not improve from the time he entered the facility until the assault on Harrienger. Bazzi further opined that when Miranda "quieted down during a time period" (Tr 252, line 15), Defendant misattributed this action to psychiatric improvement. Lastly, Bazzi opined to a reasonable degree of psychiatric certainty that Defendant's substandard level of care to Miranda was a substantial factor in causing the assault on Harrienger on May 12, 2014. Bazzi's opinion was based upon her assessment that Miranda was not appropriately stratified as well as his history of violence, substance abuse, and antisocial personality disorder; his noncompliance with medication and treatment while at SLPC; and his paranoid, guardedness, isolation traits, among others.

Dr. Robert Weisman (Weisman) was called by Defendant as an expert in the field of psychiatry and forensic psychiatry. Defendant presented Weisman's remarkable qualifications as an expert. Weisman opined that, within a reasonable degree of medical certainty, Dr. Palmer's initial assessment of Miranda relative to his "no high risk" stratification and Miranda's placement on ward restriction with staff continuing to monitor and adjust such stratification and restrictions when necessary was within acceptable standards of care in psychiatry. Weisman testified that, based upon his review of Dr. Palmer's screening notes of the initial assessment, Miranda initially presented as reasonably stable with potential psychotic features, calm, not agitated, polite, responsive, and agreeable to treatment. Weisman did note that Miranda thought he was at SLPC for an evaluation rather than admission. Weisman also opined that, within a reasonable degree of psychiatric certainty, the treatment provided to Miranda by Defendant was also within acceptable standards of care. However, after acknowledging Miranda's history of violence, physical and verbal assaults during the months of April and May 2014, and intermittent attendance at treatment, Weisman proclaimed "[Defendant] maintained [Miranda's] admission level, which belies maybe that low risk assessment, or no risk assessment" (Tr 343, lines 22-24). To that end, Weisman opined "it's probably much more conservative to say, at least, he's at moderate risk based on his history" (Tr 300, lines 9-11). Weisman also opined that staffing levels in the dining area were sufficient on May 12, 2014 and the staff who were employed in the dining area on that date were sufficiently trained and responded appropriately to the incident.

Both experts testified that historic violent tendencies of a patient are a potential indicator of future violence. However, the experts disagreed as to whether Miranda exhibited violent tendencies such that would serve as an indicator.

DISCUSSION

The Claim asserts causes of action in medical malpractice and negligence. It is alleged that the State failed to (1) keep Harrienger free from harm, (2) segregate him from violent patients, (3) properly train staff, (4) have sufficient staff supervising for the number of patients, (5) provide adequate supervision and segregate potentially violent patients, (6) provide adequate aid to Harrienger, and (7) have proper policies and procedures in place to prevent Harrienger from being injured.(4)

The distinction between a cause of action sounding in medical malpractice and one alleging medical negligence "is a subtle one, for medical malpractice is but a species of negligence and no rigid analytical line separates the two" (Martuscello v Jensen, 134 AD3d 4, 10 [3d Dept 2015] [internal quotation marks and citations omitted]; see Weiner v Lenox Hill Hosp., 88 NY2d 784, 787 [1996]). "The issue devolves to whether medical judgment is required or not; where the underlying claim arises from the failure to follow a medical order previously made or to apply standards of ordinary care, then it is negligence, without regard to whether expert testimony is deemed helpful to the resolution. However, where the conduct involves a standard established by means of the exercise of medical judgment, then it is malpractice" (Martuscello, 134 AD3d at 11; see Weiner, 88 NY2d at 788; see Moore v St. James Health Care Ctr., LLC, 141 AD3d 701, 702-703 [2d Dept 2016]). Courts have held that claims premised upon a defendant institution's failure to protect or safeguard an individual from harm sound in ordinary negligence (see e.g. Borrillo v Beekman Downtown Hosp., 146 AD2d 734, 735 [2d Dept 1989]; Cooper v State of New York, UID No. 2018-018-943 [Ct Cl, Fitzpatrick, J., July 13, 2018]). Consequently, the Court concludes the Claim may proceed only on the theory of negligence.

The State has "a duty to exercise reasonable care to protect mentally disabled patients at its facilities and prevent them from being harmed" (Dawn VV. v State of New York, 47 AD3d 1048, 1050 [3d Dept 2008]; see Killeen v State of New York, 66 NY2d 850, 851 [1985]). "When it manages a residential facility, the State has a concomitant obligation to take protective measures if it 'knew or should have known from past experience' that one of its patients might imperil another individual" (J.K.P. v State of New York, UID No. 2017-049-102 [Ct Cl, Weinstein, J., July 13, 2017], quoting Royston v Long Is. Med. Ctr., Inc., 81 AD3d 806, 807 [2d Dept 2011]). The degree of care "owed to such individuals is measured by the patient's physical and mental ailments as known to the hospital [or facility] officials, physicians and employees" (Dawn VV., 47 AD3d at 1050 [internal quotation marks and citation omitted]).

Additionally, "'[a]s with any liability in tort, the scope of a [facility]'s duty [to its residents] is circumscribed by those risks which are reasonably foreseeable'" (Schnorr v Emeritus Corp., 118 AD3d 1307, 1307 [4th Dept 2014], quoting N.X. v Cabrini Med. Ctr., 97 NY2d 247, 253 [2002]). Thus, the State is not required to provide unremitting surveillance of a patient's every action, and negligence cannot be presumed from the occurrence of an injury (see Rella v State of New York, 117 AD2d 591, 592 [2d Dept 1986]; Mochen v State of New York, 57 AD2d 719, 720 [4th Dept 1977]).

To show that the actions that caused injury were reasonably foreseeable, the claimant must introduce evidence of prior "'similar incidents or aggressive behavior by the [resident] such that it should have anticipated the alleged incident and protected [decedent] from it'" (Schnorr, 118 AD3d at 1309, quoting Royston, 81 AD3d at 807). This can be established by proof of Defendant's notice of (1) prior similar incidents between the residents at issue, (2) prior similar incidents between the assailant and other residents, and/or (3) the assailant's violent or aggressive tendencies (see Schnorr, 118 AD3d at 1308; compare Whidbee v State of New York, 176 AD2d 798, 799 [2d Dept 1991] [harm not reasonably foreseeable when State had no knowledge of assailant's "dangerous proclivities"], lv denied 80 NY2d 752 [1992], with Goble v State of New York, 123 AD2d 664, 664-665 [2d Dept 1986] [psychiatric facility was aware that "patient who threw the chair [at another patient] had a long history of violent behavior, including repeated instances of throwing furniture and other objects when agitated"] and Evans v State of New York, 117 AD2d 581, 582 [2d Dept 1986] ["(t)he records indicated that the attacker was an extremely dangerous individual with a history of homicidal tendencies. He was known to have previously been aggressive towards other patients, and several members of the staff were afraid of him."]). The claimant need not show that the exact injury was foreseeable, "so long as some type of injury may [have been] reasonably anticipated" (Freeman v St. Clare's Hosp. & Health Ctr., 156 AD2d 300, 301 [1st Dept 1989]; see Harris v State of New York, 117 AD2d 298, 303 [2d Dept 1986] ["(a) claimant, in order to establish the negligence of the State, must show that it was reasonably foreseeable that an injury could occur but need not demonstrate that the precise or exact manner in which the accident occurred was foreseeable or could be anticipated"]; see e.g. Dawn VV., 47 AD3d at 1051 ["(a)lthough (the) defendant may not have been aware that a sexual assault was likely to occur if residents were left unsupervised, it was foreseeable that a resident could engage in some type of physical assault against another resident if the enacted safety plans were not adhered to"]).

The Court finds Defendant owed a duty of care to Harrienger to protect him and prevent him from being harmed. Defendant breached that duty by failing to adequately supervise Miranda. This Court further finds Miranda's actions on May 12, 2014 were foreseeable in that Miranda had a history of violence as evidenced by his criminal record prior to entering SLPC. Moreover, during the short period of time he was hospitalized, to wit: April 14, 2014 until May 12, 2014, Miranda demonstrated escalating aggressive behaviors including verbal and physical assaults among staff and other patients prior to the assault of May 12, 2014. Defendant neither appropriately stratified Miranda's initial risk assessment nor appropriately reassessed or increased said risk assessment after these demonstrated aggressive behaviors. Additionally, Miranda's mental health had not improved during his hospitalization as evidenced by his sporadic and, at times, noncompliance with medication and treatment, his isolative behaviors, and antisocial personality disorder. The Court does indeed find whatever brief periods of time Miranda was compliant and/or in a less agitated mental state was misattributed by SLPC staff as improvement. The Court concludes that Defendant's failure to appropriately stratify Miranda's initial risk assessment or, at the very least, reassess or increase said risk assessment after Miranda demonstrated aggressive behaviors was a substantial factor in the assault against Harrienger resulting in his death.

However, the Court finds Claimant did not prove beyond a preponderance of the credible evidence that Defendant failed to properly train staff at SLPC, failed to have sufficient staff supervising for the number of patients at SLPC, or failed to provide adequate aid to Harrienger after the assault on May 12, 2014, and failed to have proper policies and procedures.

Therefore, upon consideration of the testimony of the trial witnesses, observing their demeanor and assessing their credibility as well as reviewing all exhibits received at trial and reviewing the applicable law, this Court hereby finds that Defendant State of New York is 100% liable for the death of Robert Harrienger II.

Any and all other evidentiary rulings or motions upon which the Court may have previously reserved, or which were not previously determined are hereby denied.

The Claim will be scheduled for trial on the issue of damages as soon as practicable.

LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.

September 3, 2021

Albany, New York

CATHERINE E. LEAHY-SCOTT

Judge of the Court of Claims


1.

1 David A. Harrienger was issued Letters of Limited Administration on behalf of the Estate of Robert D. Harrienger II authorizing him to commence this action (see Claim, Ex A)

.

2.

2

Court Exhibit 1.

3.

3

"Tr" refers to the transcript of the trial.

4.

4 Claimant also alleged a violation of Public Health Law 2801-d for deprivation of a right or benefit conferred by contract, statute, regulation, code or rule but did not pursue this cause of action at trial or in her posttrial brief, and the Court finds this cause of action has been abandoned (see Smith v Fayetteville-Manlius Cent. School Dist., 32 AD3d 1253, 1254 [4th Dept 2006]; Cooper v State of New York

, UID No. 2018-018-943 [Ct Cl, Fitzpatrick, J., July 13, 2018]).