Motion to dismiss Claim denied; Claimant need not exhaust administrative remedies before commencing action for medical negligence/malpractice; Affording Claimant every favorable inference, claim is sufficiently particular to give Defendant notice of the essential facts constituting the claim.
|Claimant short name:||Brown|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Catherine E. Leahy-Scott|
|Claimant's attorney:||Zamon Brown, Pro Se|
|Defendant's attorney:||Hon. Letitia James, New York State Attorney General
By: Christopher J. Kalil, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 12, 2021|
|See also (multicaptioned case)|
Pro se Claimant Zamon Brown, an incarcerated individual in custody of the Department of Corrections and Community Supervision (DOCCS) filed this Claim on July 19, 2021 sounding in medical negligence/medical malpractice. Specifically, the Claim alleges "On March 1, 2021, while [in] housing unit G-1 23 cube in Marcy Correctional Facility, Claimant sign [sic] up for sickcall [sic] complaining of pain in claimant [sic] face and nose. When seen by the nurse, the nurse told [Claimant] that he had a dental problem . . . [and] diagnose[d] [C]laimant with having tooth [sic] ache"
(Affirmation of Christopher J. Kalil, Esq., Ex A [Claim] ¶ 3). Claimant alleged he was then "seen by the dentist and told . . .he didn't have a dental problem, [but] he have [sic] a real bad sinus infection" (id. ¶ 4). Claimant asserts the dentist "told [him] he should sign back up for sickcall" and, "[a] few days later[,] claimant sign[ed] back up for sickcall" (id.). Claimant then met with the nurse who "again stated that it was a dental problem" and purportedly refused to provide medical attention (id. ¶ 4). As a result of Defendant's alleged failure to provide treatment to Claimant, he has suffered facial pain, "los[s] of sleep, heightened anxiety, and mental anguish" (id. ¶ 9).
Defendant moves to dismiss on the grounds that this Court lacks subject matter jurisdiction over the Claim and the Claim otherwise fails to state a cause of action upon which relief can be granted. Defendant first argues that this Claim must be dismissed because Claimant failed to exhaust his administrative remedies (see Affirmation of Christopher J. Kalil, Esq., Assistant Attorney General ¶ 5). However, a claimant is "under no obligation to exhaust an administrative remedy prior to serving [a] claim alleging personal injury . . . for medical negligence" (Lapierre v State of New York, UID No. 2019-041-067 [Ct Cl, Milano, J., Oct. 29, 2019]). "The only instance where a claimant is required to exhaust another remedy prior to filing a claim is in the case of a claim for loss of or damage to property" (Reginer v State of New York, UID No. 2015-029-029 [Ct Cl, Mignano, J., Mar. 23, 2015]; see Court of Claims Act § 10 ; Wilson v State of New York, UID No. 2018-040-063 [Ct Cl, McCarthy, J., July 18, 2018]). Consequently, Claimant is under no obligation to exhaust administrative remedies in this instance. Indeed, Claimant is not challenging the denial of his grievances for inadequate medical treatment, which would be the proper subject of a CPLR article 78 proceeding; rather, Claimant is seeking redress for the denial of medical treatment itself which can be maintained in this Court in the first instance.
Alternatively, Defendant moves to dismiss this Claim on the ground that Claimant failed to satisfy the pleading requirements of Court of Claims Act § 11 (b).
"The State's waiver of immunity from suits for money damages is not absolute, but rather is contingent upon a claimant's compliance with specific conditions placed on the waiver by the Legislature" (Lepkowski v State of New York, 1 NY3d 201, 206 ; see Court of Claims Act § 8; Alston v State of New York, 97 NY2d 159, 163 ). Moreover, "[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Matter of New York City Asbestos Litig., 24 NY3d 275, 281  [internal quotation marks and citations omitted]).
The Court of Claims Act provides that a claim "shall state the time when and place where such claim arose [and] the nature of same" (Court of Claims Act § 11 [b]; see Kolnacki v State of New York, 8 NY3d 277, 280 , rearg denied 8 NY3d 994 ; Lepkowski, 1 NY3d at 207). "Although absolute exactness is not required, the claim must provide a sufficiently detailed description of the particulars of the claim to enable [the defendant] to investigate and promptly ascertain the existence and extent of its liability" (Morra v State of New York, 107 AD3d 1115, 1115-1116 [3d Dept 2013] [internal quotation marks and citation omitted]; see Lepkowski, 1 NY3d at 207; Acee v State of New York, 81 AD3d 1410, 1411 [4th Dept 2011]). However, it is well settled that "the defendant is not required 'to ferret out or assemble information that section 11 (b) obligates the claimant to allege'" (Morra, 107 AD3d at 1116, quoting Lepkowski, 1 NY3d at 208).
"To adequately plead when the claim arose, the claimant must allege the date of the tort or other claim, as the case may be, with sufficient definiteness to enable the State to investigate the claim promptly and ascertain its potential liability" (Matter of Geneva Foundry Litig., 173 AD3d 1812, 1813 [4th Dept 2019]). Thus, "[i]f the claimant fails to specify the dates relevant to the elements of the claim or provides only a broad range of dates, the claim is jurisdictionally defective and properly dismissed (id. at 1813-1814).
Courts have previously held that where a claim is based upon DOCCS' alleged failure to diagnose and treat a claimant's medical condition, the requirements of Court of Claims Act § 11 (b) are satisfied if "[the] claimant has provided a range of dates together with the names of the correctional facilities where claimant was treated, and has also alleged that acts or omissions of the defendant have caused claimant to suffer [injuries]" (Smith v State of New York, UID No. 2006-009-079 [Ct Cl, Midey, Jr., J., Dec. 22, 2006]; see Epps v State of New York, 199 AD2d 914, 914 [3d Dept 1993] ["(w)here, as here, the alleged negligence was ongoing, and assertedly involved omissions rather than affirmative acts, the recitation in the notice of the range of dates, along with the three correctional facilities where claimant was treated, is sufficiently specific to permit the State to investigate the claim, for example by reviewing the pertinent records and interviewing the personnel involved"]; Reese v State of New York, UID No. 2008-036-335 [Ct Cl, Schweitzer, J., Nov. 6, 2008] ["the claim alleges that the negligent acts occurred during the period between June 4, 2007 and June 21, 2007, and 'particularly on June 4, 2007,' the date (the) claimant was first admitted at Downstate"]).
Here, the Claim alleges that the medical staff at Marcy Correctional Facility failed to properly diagnose and treat Claimant's facial and nasal pain, which he first reported via a sick call request on March 1, 2021 (see Claim ¶ 3). The Court recognizes the Claim is inartfully drafted and does not state the specific dates of the initial sick call at which the facility nurse allegedly diagnosed Claimant with a "tooth ache" (id.), the appointment with the facility dentist who diagnosed Claimant with a "bad sinus infection" (id. ¶ 4), nor the second sick call with the facility nurse who reiterated Claimant had "a dental problem" (see id.). Nevertheless, construing this claim liberally, and according Claimant the benefit of every favorable inference as the Court must on this motion to dismiss (Leon v Martinez, 84 NY2d 83, 87-88 ), it is evident that Claimant's various appointments occurred at Marcy Correctional Facility within "[a] few days" (Claim ¶ 4) of Claimant's initial sick call request on March 1, 2021. The Court concludes that the Claim is sufficiently particular to satisfy the pleading requirements of Court of Claims Act § 11 (b) (see Epps v State of New York, 199 AD2d at 914; Smith, UID No. 2006-009-079; cf. Anekwe v State of New York, UID No. 2017-038-575 [Ct Cl, DeBow, J., Oct. 10, 2017]). In so holding, the Court reiterates that 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 (Davilla v State of New York, 140 AD3d 1415, 1416 [3d Dept 2016]). Notably, Defendant does not assert that it has attempted to conduct an investigation into Claimant's allegations and has been unable to do so or will otherwise be prejudiced (see Pittman v State of New York, UID No. 2021-040-030 [Ct Cl, McCarthy, J., July 26, 2021] [holding a notice of intention and claim satisfied the particularity requirements of Court of Claims Act § 11(b) despite not stating a specific date of accrual where it was clear the claim arose in September 2013]). Given the claim sets forth a reasonably defined period of time, references a particular medical condition, and gives the specific correctional facility where Claimant was allegedly denied medical treatment, the Court determines the Claim is sufficiently particular for Defendant to investigate and determine its liability.
Accordingly, it is hereby
ORDERED Motion No. M-97220 is DENIED.
October 12, 2021
Albany, New York
Catherine E. Leahy-Scott
Judge of the Court of Claims
The Court considered the following papers in deciding this motion:
(1) Notice of Motion, dated August 9, 2021.
(2) Affirmation of Christopher J. Kalil, Esq., in Support, dated August 9, 2021, with attachment.