Opinion
# 2013-049-053 Claim No. 122784 Motion No. M-83750
09-18-2013
WILLIAM E. CLARK, BY THE ADMINISTRATOR OF HIS ESTATE, JANET CLARK-JOHNSON v. THE STATE OF NEW YORK
Synopsis
The Court denied without prejudice claimant's motion to file a late claim that adds a personal injury cause of action to a timely filed wrongful death claim, based upon claimant's failure to provide adequate medical evidence. The Court granted claimant's application to file a certificate of merit, and conditionally strike defendant's affirmative defense alleging claimant's failure to comply with CPLR 3012-a.
Case information
UID: 2013-049-053 Claimant(s): WILLIAM E. CLARK, BY THE ADMINISTRATOR OF HIS ESTATE, JANET CLARK-JOHNSON Claimant short name: CLARK Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant (s): Claim number(s): 122784 Motion number(s): M-83750 Cross-motion number(s): Judge: DAVID A. WEINSTEIN The Law Firm of Ray & Associates Claimant's attorney: By: James R. Ray, III, Esq. Eric T. Schneiderman, New York State Attorney General Defendant's attorney: By: Joseph Tipaldo, Assistant Attorney General Third-party defendant's attorney: Signature date: September 18, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
On May 3, 2013 Janet Clark-Johnson was appointed administrator of her father William E. Clark's estate. On May 29, 2013, Clark-Johnson filed claim No. 122748 with this Court. That claim alleges that SUNY Downstate Medical Center ("Downstate") breached the applicable standard of medical care which proximately caused the decedent to be hospitalized at Downstate for seven months, where he developed a condition that ultimately led to his death.
Specifically, the claim states that on October 31, 2011, decedent presented at Downstate, and on November 3, 2011, he was administered either the wrong medication or an incorrect dosage of medication, which caused a reaction that resulted in his remaining at the hospital for seven months. During his stay, he developed decubitus ulcers, also known as bed sores or pressure ulcers. In May 2012, decedent was discharged from Downstate and was transferred to Kingsbrook Nursing Home where he remained until his death on May 12, 2012. The claim asserts causes of action for conscious pain and suffering (i.e. personal injuries) and wrongful death (including certain expenses). A certificate of merit was not included with claimant's filing as required under CPLR 3012-a.
The claim states that it accrued on May 14, 2012.
In its answer defendant State of New York raised in its fourth affirmative defense that the claim of conscious pain and suffering was untimely, and in its fifth affirmative defense that claimant failed to comply with CPLR 3012-a.
The wrongful death action was served and filed within the time period prescribed in Court of Court of Claims Act § 10(2), which provides that such a claim against the State must be served and filed within 90 days after the appointment of a personal representative of decedent, unless claimant had served a timely notice of intention. However, the personal injury cause of action for conscious pain and suffering is subject to the time period set forth in Court of Claims Act § 10(3), which requires that a claim be served and filed, or in the alternative that a notice of intention be served, within 90 days after accrual (see Lichtenstein v State of New York, 93 NY2d 911 [1999] [setting forth time frames for administrator's commencement of causes of action for wrongful death and pain and suffering]). Consequently, the claim for pain and suffering is untimely, and claimant thus moves for permission to serve and file a late claim pursuant to Court of Claims Act § 10(6). Claimant also moves to serve an amended claim in compliance with CPLR 3012-a, and to strike defendant's fifth affirmative defense. For reasons set forth below, claimant's application is granted to the extent that claimant is directed to provide a certificate of merit in accordance with the terms of this opinion, and denied in all other respects.
I announced this ruling in an on-the-record conference conducted September 11, 2013. This opinion memorializes the terms of that ruling, and sets forth its rationale.
The late claim application was filed within the relevant statute of limitations, so that the Court has jurisdiction to grant relief under section 10(6). In determining whether such relief is appropriate, the Court must consider the factors listed in the statute (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]). Those factors are: whether the delay in filing the claim was excusable; whether defendant had notice of the essential facts constituting the claim; whether defendant had an opportunity to investigate; defendant was substantially prejudiced; whether the claim appears to be meritorious; and whether claimant has any other available remedy. These factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling (id.).
Claimant's application is supported by counsel's affirmation, a memorandum of law, an affirmation by Clark-Johnson which describes her appointment as administrator, various documents that concern Clark-Johnson's petition for letters of administration, the decree appointing her to administer her father's estate with letters of administration, and a copy of claim No. 122784.
The Court will treat the filed claim, which as noted includes the cause of action for pain in suffering at issue in claimant's motion, as the proposed claim.
Defendant opposes the application on all of the section 10(6) factors, relying on the affirmation of an assistant attorney general. By way of response to the opposition filing, claimant submits another affirmation by counsel, to which is attached photocopies of a number of photographs that, according to counsel, depict decedent's ulcers that were "caused by defendant's failure . . . to turn Mr. Clark on his hospital bed" (Reply Aff in Supp ¶ 16).
With respect to the existence of a valid excuse, claimant asserts that because of a backlog at the Kings County Surrogate's Court, the estate's representative did not receive the Letters of Administration in a timely fashion, which in turn resulted in the delay in bringing the claim. Claimant, however, could have served a notice of intention to file a claim for both the wrongful death action and the pain and suffering action before her appointment as administrator of her father's estate (see Tooks v State of New York, 40 AD3d 1347 [3d Dept 2007] ["claimant . . . could file a valid notice of intention to file a claim for both the wrongful death action and action for pain and suffering before her appointment as administrator of her son's estate"], lv denied 9 NY3d 814 [2007]), obviating the need for the application herein. Since claimant had available a legal avenue to proceed with a timely claim, her failure to do so amounts to ignorance of the law, which is not a valid excuse for purposes of section 10(6) (see e.g. Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]); Bierria v State of New York, UID No. 2009-044-552 [Ct Cl, Schaewe, J., Sept. 15, 2009]). Therefore, this factor weighs against granting claimant's application.
Whether defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this application are closely related and will be considered together (see Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). The record does not demonstrate that defendant had notice of the claim, as the mere existence of medical records does not put the State on notice of a legal claim that may be derived from those records (see Lerner v State of New York, 72 AD3d 406, 407 [1st Dept 2010]; Conroy v State of New York, 192 Misc 2d 71, 72 [Ct Cl 2002]). As to prejudice, however, defense counsel makes only the general assertion that the 13-month delay in filing the initial claim has "inarguably deprived the State of an opportunity to contemporaneously investigate the circumstances underlying the claim" (Aff in Opp ¶ 16). Defendant has not submitted an affidavit from a person with knowledge of the relevant facts and circumstances that could attest that there was an inability to investigate, relying instead solely on the affirmation of an assistant attorney general without personal knowledge of the events. Such evidence alone is insufficient to demonstrate prejudice (see e.g Seales v State of New York, UID No. 2011-030-600 [Ct Cl, Scuccimarra, J., Oct. 6, 2011] ["[o]ther than counsel's own declaration that the delay has precluded an ability to investigate - without any indication that any investigation has been attempted and failed - there is no reason why the State could not ascertain its potential for liability and formulate a theory of defense"]; Murti v State of New York, UID No. 2010-040-016 [Ct Cl, McCarthy, J., Mar. 23, 2010] [rejecting claim of prejudice where "counsel has submitted only his own conclusory affirmation in this regard [and t]here is no statement from a potential witness stating that the witness does not remember the event or that the State attempted an investigation and was unable to do so"]). Therefore, these factors balance equally between claimant and defendant.
As to an alternate remedy, claimant acknowledges that there may be "another possible remedy in the Supreme Court of the State of New York" (Reply Aff in Supp ¶ 23). Thus, this factor weighs against granting the application.
The final factor - whether the proposed claim has the appearance of merit - is the most significant, because to permit the filing of "a legally deficient claim which would be subject to immediate dismissal" would be "futile" (Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; see also McCarthy v New York State Canal Corp., 244 AD2d 57 [3d Dept 1998] ["in the absence of the appearance of merit to claimant's claim, the request to file a late notice of claim . . . should have been denied"]).
This factor is assessed under the twofold test set forth in Matter of Santana v New York State Thruway Auth. (92 Misc 2d 1 [Ct Cl 1977]). To meet this test: (1) the proposed claim "must not be patently groundless, frivolous, or legally defective," and (2) the record as a whole, including the proposed claim and any affidavits or exhibits, must give "reasonable cause to believe that a valid cause of action exists" (id. at 11). In applying this standard, "the court looks at all of the submitted papers, including affidavits and exhibits, to determine whether a putative claimant has met the statutory burden of 'apparent merit' and is not confined to the text of the proposed claim itself" (Mamedova v City Univ. of N.Y., 13 Misc 3d 1211[A], 2006 NY Slip Op 51775[U] [Ct Cl 2006]).
Claimant's submission fails to meet the Santana standard.
As a general rule, when a motion to file a late claim asserts medical malpractice, a physician's affidavit should be included with the application so that the Court may assess apparent merit (see Matter of Perez v State of New York, 293 AD2d 918 [3d Dept 2002] ["expert medical evidence clearly is required to demonstrate that the diagnosis and treatment rendered to claimant by state personnel departed from accepted medical practices and standards"]; Schreck v State of New York, 81 AD2d 882 [2d Dept 1981] [medical affidavit required to establish a causal connection between the alleged malpractice and the injury]). There are, however, limited circumstances where such an affidavit may not be necessary. This is so, for instance, where the appearance of merit can be gleaned from claimant's other submissions, such as medical records, and only then when the elements of the action can be determined "by a layperson on the basis of common everyday experience" (Matter of Perez, 293 AD2d at 919; see also De Paolo v State of New York, 99 AD2d 762 [2d Dept 1984] [claimant's medical records established a condition which, based upon the packaging literature on the medication prescribed him, should have precluded the use of that drug, and thus demonstrated the appearance of merit without an expert affidavit]).
Although claimant asserts that "[c]laimant's contentions are also supported by the medical records" (Reply Aff in Supp ¶ 16), neither a physician's affidavit nor any medical records were provided in the filings made on this motion. While claimant attached photographs of the ulcers that are the subject of this lawsuit in its reply submission, without a physician's affidavit claimant cannot show that the development of the ulcers were caused by a departure from acceptable medical practices and standards.
At least one court has indicated that a claim against a care facility for bed sores that resulted from the facility's failure to adequately turn over a patient might sound in ordinary negligence, not medical malpractice (see Yakkey v Ascher, 2009 NY Slip Op 31079[U] [Sup Ct, Nassau County 2009] ["Some of the allegations with respect to . . . bed sores could be the result of actions by facility staff members and not medical professionals, and thus would sound in ordinary negligence"]; but see Maloney v Meadowbrook Care Ctr., 2009 NY Slip Op 31176 [U] [Sup Ct, NY County 2009] ["allowing bed sores to develop and failing to diagnose and treat them in a timely fashion" sounds in medical malpractice]). I need not address this issue, however, since the current claim appears on its face to allege medical malpractice (see Claim ¶ 3 [bedsores were "direct and proximate result of the breach of applicable standard of medical care"]). Neither the present claim nor claimant's application set forth any facts from which the Court could glean that the sores were the result of negligence by someone other than a medical professional.
Claimant is correct in noting that "a claimant is not mandated to submit an affirmation of a physician . . . in order to establish defendant's deviations from accepted medical practice" when filing a medical malpractice claim (Reply Aff in Supp ¶ 17, citing CPLR 2106, 3012-a, 3101[d]). The Santana standard, however, places a "heavier burden" on a party who seeks permission to file a late claim than the burden placed on a claimant who filed a timely claim in accordance with the Court of Claims Act (see Matter of Santana, 92 Misc 2d at 11-12; see also Peralta v State of New York, UID No. 2005-036-100 [Ct Cl, Schweitzer, J., Sept. 6, 2005] [certificate of merit alone is insufficient to demonstrate appearance of merit for the purposes of section 10(6)].
Further, while there is a timely claim before me alleging wrongful death, that alone does not demonstrate the validity of the cause of action for pain and suffering.
In view of the foregoing, I find that claimant has not established that the proposed claim has the appearance of merit. As a result, and in the absence of any other factor that would warrant a different result, claimant has failed to show that she should be permitted to file a late claim pursuant to section 10(6).
With respect to claimant's application seeking to serve an amended claim in compliance with CPLR 3012-a, counsel advises that the certificate of merit was mistakenly omitted when the original claim was filed (Aff in Supp ¶ 20). A certificate of merit was filed, following the Court's oral ruling on this motion, on September 13, 2013.
In Kolb v Strogh (158 AD2d 15 [2d Dept 1990]), the Second Department held that "neither statute nor rule authorizes dismissal of the action as a sanction for a violation of CPLR 3012-a" (Kolb, at 16; see also Russo v Pennings, 46 AD3d 795 [2d Dept 2007] [dismissing action for plaintiff's failure to comply with CPLR 3012-a is unauthorized]). Therefore, in situations, where (as here) law office failure is the cause for the omission, and no prejudice to defendant is found, a claimant is normally permitted to serve and file the certificate of merit during the pendency of the litigation (see Casiano v New York Hospital-Cornell Med. Ctr., 169 AD2d 806 [2d Dept 1991]; Maniaci v State of New York, UID No. 2005-009-012 [Ct Cl., Midey, J., Feb. 23, 2005]).
Accordingly, claimant's motion No. M-83750 is granted, and defendant's fifth affirmative defense is dismissed. The motion is denied with respect to claimant's application to file a late claim, without prejudice to a subsequent timely application that is supported by adequate medical evidence.
So Ordered.
September 18, 2013
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion for Leave to File and Serve a Late Certification of Merit and Notice of Claim, Affirmation in Support, and annexed exhibits.
2. Defendant's Affirmation in Opposition.
3. Claimant's Reply Affirmation in Support of Claimant's Motion, and annexed exhibits.