Opinion
# 2014-018-516 Claim No. 119620 Motion No. M-84079 Cross-Motion No. CM-84668
05-30-2014
DELIA DAVILA a/k/a DELGIA DAVILA, Administrator for the Estate of Gloria Bonilla v. STATE OF NEW YORK
FOULKE LAW OFFICES By: Evan M. Foulke, Esquire ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: G. Lawrence Dillon, Esquire Assistant Attorney General
Synopsis
Claimant's motion for summary judgment is granted. The Notice to Admit, together with other undisputed failures, establish the State is 100% liable for Ms. Bonilla's injuries and death.
Case information
| UID: | 2014-018-516 |
| Claimant(s): | DELIA DAVILA a/k/a DELGIA DAVILA, Administrator for the Estate of Gloria Bonilla |
| Claimant short name: | Davila |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 119620 |
| Motion number(s): | M-84079 |
| Cross-motion number(s): | CM-84668 |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | FOULKE LAW OFFICES By: Evan M. Foulke, Esquire |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: G. Lawrence Dillon, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 30, 2014 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant brings a motion seeking summary judgment. Defendant opposes the motion and makes a cross motion to dismiss the claim for failure to comply with Court of Claims Act section 11 (b). Claimant opposes the cross motion.
Since Defendant's motion raises an issue of subject matter jurisdiction, the Court will address the cross motion first. If the Court lacks jurisdiction to hear the claim, the issue of summary judgment is moot.
Defendant's Cross Motion to Dismiss the Claim
Defendant moves to dismiss the claim asserting that it fails to comply with Court of Claims Act section 11 (b), in that it fails to state the nature of the claim. Defendant did not assert any issue with the sufficiency of the claim pursuant to Court of Claims Act section 11 (b) in its answer, and the time frame to allow Claimant to bring a timely late claim application has expired.
Court of Claims Act section 11 (b) provides: "[t]he claim shall state [1] the time when and [2] place where such claim arose, [3] the nature of same, and [4] the items of damage or injuries claimed to have been sustained." "The failure to satisfy any of the conditions is a jurisdictional defect." (Kolnacki v State of New York, 8 NY3d 277, 281 [2007]). The Court of Appeals has consistently held that "nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary." (see id.; Lepkowski v State of New York, 1 NY3d 201 [2003]; Lichtenstein v State of New York, 93 NY2d 911, 913 [1999]; Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). These requirements are strictly construed, and if the substantive pleading details are not provided, dismissal for lack of subject matter jurisdiction is mandated (Signature Health Ctr., LLC v State of New York, 42 AD3d 678 [3d Dept 2007]). Where the statutory items required to be in the claim have been provided but there are questions of whether the allegations and information provide sufficient particularity to meet the requirements of Court of Claims Act section 11 (b), the guiding principle is whether the claim is definite enough to "enable the State . . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances" (Lepkowski v State of New York, 1 NY3d at 207 [2003] quoting Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]).
In Kolnacki, claimant failed to set forth the total sum claimed, which is another statutory requirement under Court of Claims Act section 11 (b). The statute has since been amended to obviate the need to allege the total sum claimed in this type of action (Court of Claims Act section 11 (b); L. 2007, ch. 606, § 1, L. 2008, ch. 64 § 1).
Here, the claim, in general, states a cause of action for negligence. It provides that the decedent, Gloria Bonilla, was in the care and custody of the State of New York when she died after suffering extreme pain and suffering. The claim accrued on March 21, 2009, at 5:25 a.m. at Riverview IRA located at 15-34 Route 30, Wells, New York. Claimant sets forth how Defendant breached its duty by its negligent construction, operation, and maintenance of the Riverview IRA. Although Claimant's description of the nature of the claim is scant, the Court holds, under these circumstances, that it is minimally sufficient to meet the Heisler standard.
Riverview Individualized Residential Alternative (Riverview IRA).
The State is adequately notified and may undertake "'investigative action as it deem[s] necessary'" when "'[t]he manner in which claimant was injured and how the defendant was negligent [is] stated or can be reasonably inferred.'" (Munroe v State of New York, UID No. 2011-030-578 [Ct Cl, Scuccimarra, J., Aug. 8, 2011] quoting Heisler v State of New York, 78 AD2d at 768). Each claim must be assessed on a case-by-case basis viewed in the context of the specific circumstances involved. (see e.g. Deep v State of New York, 56 AD3d 1260 [4th Dept 2008][description in notice of intention that motor vehicle accident involving defendant's agent in multi-vehicle accident occurred on a named roadway, which was 3.2 miles long, without identifying the specific location was sufficient to allow defendant to investigate]; Oliver v State of New York (SUNY) Health Science Ctr. at Brooklyn, 40 AD3d 719 [2d Dept 2007] [the claim set forth boiler plate allegations of negligence and medical malpractice, without any specific facts, yet despite the wrong accrual date, no identification of the improper treatment and care which claimant suffered, and reference to treatment that wasn't received, held sufficient where state hospital had "full and complete knowledge of the facts" underlying the claim even before it was filed]; Matter of O'Shea v State of New York, 36 AD3d 706 [2d Dept 2007] [claimant granted late claim relief to seek damages for medical malpractice for defendant's hospital failure to treat claimant for six hours in emergency room after he severed fingers in an accident, claim filed failed to set forth that claimant's fingers were severed or particulars related to the malpractice, motion to dismiss denied on these particular facts]; Rodriguez v State of New York, 8 AD3d 647, 648 [2d Dept 2004] [statement in amended notice of intention sufficient to state a claim for negligent medical treatment where it provided that wrongful death occurred as a result of the negligence of the State in its treatment for his congestive heart condition and stated the injuries therein sustained took place at Downstate Correctional Facility or its medical facilities intermittently from August 1998 through September 1998, with a similar statement for the treatment received from the Health Services facility at Willard was sufficient to infer death occurred from negligent medical treatment]; Santos v State of New York, 291 AD2d 851 [4th Dept 2002] [where claimant alleged that correction officers were negligent in supervising inmates in the yard in that they allowed inmate to be armed and attack him was sufficient to put defendant on notice of allegations]; but see Politi v State of New York, 112 AD3d 1257 [3d Dept 2013] [at trial, claimant injured in a motor vehicle accident alleged negligent design of the roadway, court held that issue not properly before it because it was not stated in the claim as required by Court of Claims Act section 11 (b) where claim only alleged negligent signage and excessive sand and gravel on roadway]; Morra v State of New York, 107 AD3d 1115 [3d Dept 2013] [claim alleged failure to properly supervise State Police investigator in a criminal prosecution of claimant, but court held insufficient because claim failed to provide any facts giving rise to nature of criminal charges against claimant or specific facts relating to State Police investigator's conduct, time frame encompassed a two-year period, and the location given described nine counties]; Wilson v State of New York, 61 AD3d 1367 [4th Dept 2009] [for a slip and fall notice of intention that failed to set forth year in which the injury occurred, and particular road or place on the road where claimant fell was insufficient and a lack of prejudice to the State was immaterial]).
Here, in the context of this highly publicized aberrant tragedy in which four developmentally disabled residents of Riverview IRA died in the early morning fire of March 21, 2009, a full investigation was performed by the Office of Mental Retardation and Developmental Disabilities (OMRDD), the State agency in charge of operating and administering Riverview IRA, as well as the New York State, Department of State, Office of Fire Prevention and Control. Additionally, there was a grand jury empaneled in Hamilton County that investigated the fire, and compiled a full report which was accepted on December 17, 2009, by the Honorable S. Peter Feldstein, County Court, Hamilton County. Although in less identifiable circumstances these allegations may not be sufficient, here, under these circumstances, the Claimant provided the information required by the statute and the allegations were adequate so that the State could readily investigate the claim and assess its liability.
Accordingly, the Court denies the State's motion to dismiss the claim.
Claimant's Motion for Summary Judgment
Claimant asserts that she is entitled to summary judgment on her claim as there are no material issues of fact. Defendant opposes the motion and argues that issues of fact preclude summary judgment.
In support of her motion, Claimant attaches copies of uncontested admissions of Defendant, an investigation report of the New York State Office of Fire Prevention and Control, a December 2, 2009 report of a grand jury convened in Hamilton County, an affidavit of Douglas J. Carpenter, a licensed professional engineer in fire protection engineering in the State of Maryland, and the affidavit of Dr. Jamie McAllister, a forensic toxicologist and fire protection engineer.
Based upon these submissions, Claimant has established that her decedent, Ms. Bonilla suffered from mental retardation rendering her incompetent and incapable of caring for herself. Ms. Bonilla was a resident of the Riverview IRA. The OMRDD administers and operates Riverview through its division, Sunmount Developmental Disabilities Services Office (Sunmount DDSO). The State, through OMRDD, employed Shirley E. Wolf and Scott D. Scribner as developmental aides at Riverview on March 21, 2009. The State is vicariously liable for any negligent acts or omissions committed by Shirley E. Wolf and Scott D. Scribner, the only two employees working the night shift (from 11:30 p.m. until 7:30 a.m.) at Riverview on March 21, 2009.
See Claimant's Exhibit G.
At 5:25:55 a.m., on that morning, the fire alarm at Riverview was activated. In violation of the New York State Fire Code, section 401.3, in effect on March 21, 2009, the contract with the alarm monitoring company required the company to contact the facility first before notifying the local fire department. When the alarm monitoring company contacted the facility, one of the employees answered the telephone, resulting in delaying evacuation, while the employee advised the alarm company that a fire was occurring. This exchange occurred before the fire department was notified, resulting in at least a three-minute delay in getting the fire department to the scene and in evacuating Ms. Bonilla. This also resulted in a delay of at least three minutes for Kenneth Hoffman, a firefighter who lived across the street from the Riverview IRA, and who immediately went over to Riverview IRA upon receiving a dispatch concerning the fire, to assist the staff in evacuation of the residents.
In violation of the fire evacuation plan for Riverview IRA, which requires that efforts to extinguish a fire should only be made after all residents have been evacuated, the two employees attempted to use a fire extinguisher prior to evacuating any residents. In violation of the fire evacuation plan for Riverview, the employees failed to evacuate the residents from the closest available fire exits. Ms. Bonilla was in her bedroom that night and her bedroom was directly adjacent to a designated fire exit. However, the employees at Riverview IRA attempted to evacuate Ms. Bonilla from the mudroom, which was located on the opposite end of the hallway further away than the fire exit adjacent to her bedroom. Ms. Bonilla was the first resident who the employees attempted to evacuate, but she was never evacuated from the mudroom. Four other residents of Riverview IRA were evacuated, but the fire then posed too great a risk for further rescue efforts. At approximately 8:05 a.m., after the fire was brought under control, Ms. Bonilla was found in the remains of the mudroom still alive, moving under some debris. She died en route to the hospital.
The submitted documents show that the employees had sufficient time to evacuate Ms. Bonilla from the building, if they had followed the Riverview IRA fire evacuation plan and used the fire exit closest to her bedroom. There is no evidence of any fire or smoke blocking the exit closest to Ms. Bonilla's bedroom in the early stages of the fire. In conducting the required fire evacuation drills at Riverview IRA, the night shift drills did not practice or simulate an actual evacuation with only two staff members present; instead an evacuation was simulated without actually removing the residents. Other drills would involve timing the evacuation after the arrival of other staff members to assist in the evacuation. Riverview regularly employed only two night-shift staff members on weekends. These fire drills and evacuations were deficient, and OMRDD and Sunmount DDSO did not train the staff of Riverview how to properly conduct fire drills.
Although the State has waived its sovereign immunity, a common law vestige of the State's immunity continues in the form of governmental function immunity (see Court of Claims Act § 8; Valdez v City of New York, 18 NY3d 69 [2011]). When the negligence of the State is in issue, a determination must first be made regarding in what capacity the State was acting (see Applewhite v Accuhealth, Inc., 21 NY3d 420, 425 [2013]). Where State's action is primarily proprietary, ordinary principals of tort law apply; however, if the State is acting in its governmental capacity, than a determination must be made as to whether the State owed a duty specific to the claimant, and whether the State's action involved discretionary or ministerial actions. If the action, even if negligent, involved a discretionary determination that is an exercise of reasoned judgment which can produce different results, the State may never be held liable. (McLean v City of New York, 12 NY3d 194 [2009]; Tango v Tulevech, 61 NY2d 34, 40-41 [1983]).
Here, the actions of the State in caring for and housing these developmentally disabled individuals involved its proprietary capacity (see Schrempf v State of New York, 66 NY2d 289, 294 [1985] [negligent care of a mental patient producing injury to the patient or others involves a proprietary function]; Amadon v State of New York, 182 AD2d 955, 957 [3d Dept 1992], lv denied 81 NY2d 701 [1992]; but see Brown v Speed, 302 AD2d 915 [4th Dept 2003] [where New York State Office of Children and Family Services was not providing services or care, but was directed by Family Court to provide for those services, held a governmental function]). In these circumstances, the State owes a duty to a person in its custody and care, "commensurate with the [ward's] capacity to provide for his or her own safety" (Killeen v State of New York, 66 NY2d 850, 851-852 [1985]; Schrempf, 66 NY2d at 294 ; Rosado v State of New York, 139 AD2d 851, 852 [3d Dept 1988]; Maldonado v State of New York, 27 Misc 3d 1233 [A] [Ct Cl 2010]). The State, in this case, is held to the same standard of care as a private facility providing care and housing for the developmentally disabled.
On this motion, it is Claimant who bears the burden to establish her entitlement to judgment on the merits as a matter of law (see Winegrad v New York University Medical Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The failure to meet this burden requires denial of the motion regardless of the sufficiency of the opposing papers (Winegrad, 64 NY2d at 853; Gstalder v State of New York, 240 AD2d 541, 542 [2d Dept 1997]; Matter of Redemption Church of Christ of Apostolic Faith v Williams, 84 AD2d 648, 649 [3d Dept 1981]). Only after Claimant has met her burden does it then shift to the Defendant to come forward with proof to show a genuine question of fact exists (Oswald v City of Niagara Falls, 13 AD3d 1155 [4th Dept 2004]). Since summary judgment is a drastic remedy, it should only be granted where there are no issues of fact and the claim can be decided as a matter of law (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]).
Claimant has established her entitlement to summary judgment, by establishing that her decedent, Ms. Bonilla, did not have the capacity to care for herself or to independently remove herself from the burning residence; she was dependent upon the State and its employees. Claimant has also established that the New York State Uniform Fire Prevention and Building Code required an approved fire and safety and evacuation plan. In attempting to evacuate Ms. Bonilla during the fire that occurred on March 21, 2009, the Riverside IRA staff failed to follow and abide by the evacuation plan, and the failure to do so resulted in Ms. Bonilla being left inside the burning building, suffering injuries and, ultimately, death.
Defendant attempts to raise issues of fact as to the implication of the findings of the grand jury and the nature of the cause of the fire. Defendant argues that if the State employees were improperly smoking on the back porch of the facility in violation of employment policies, which may have caused the fire to start, there are issues of fact regarding what started the fire. Also, it is contended that it is a question of fact whether they were acting within the scope of their employment such that the State could be held vicariously liable. Defendant also points to issues with the length of the delay in notifying the fire department by the alarm company and whether the delay was warranted or a proximate cause of Ms. Bonilla's death.
Although these factors may raise questions of fact, there are no questions of fact regarding Ms. Bonilla's location next to a fire exit at the time the fire started, nor is there a question that the fire evacuation plan required the residents to be evacuated from the nearest exit. There is no indication there was any reason why that adjacent exit could not be used; yet, the staff took Ms. Bonilla down the hall to the mudroom and left her there, resulting in her injuries and ultimate death. She was left at that location for approximately 2½ hours until she was found alive, but burned, under rubble around 8:00 a.m., after the fire was under control. These facts are not in dispute and establish a breach of Defendant's duty to care for this dependent resident who was incapable of caring for or protecting herself. Moreover, the Notice to Admit establishes that the State failed to properly conduct fire drills in which the residents were evacuated in the middle of the night with only two staff members present. These undisputed failures the Court finds proximately contributed to Ms. Bonilla's injuries and loss of life. The State is 100 percent liable for Gloria Bonilla's injuries and death.
See, Affidavit of Douglas J. Carpenter, sworn to on September 26, 2013.
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Accordingly, based upon the foregoing, Claimant's motion is GRANTED. Let interlocutory judgment on the issue of the State's liability be entered.
A conference call will be scheduled as soon as practical after service of a copy of this Decision and Order to address Motion No. M-83258 and to determine a schedule for discovery before the damages trial is scheduled.
May 30, 2014
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following documents in deciding these matters:
M-84079
1) Notice of Motion.
2) Affirmation of Evan M. Foulke, Esquire, in support with exhibits attached thereto.
3) Affidavit of Dr. Jamie McAllister, sworn to September 24, 2013, in support.
4) Affidavit of Douglas J. Carpenter, sworn to September 26, 2013, in support.
5) Claimant's Memorandum of Law in Support.
6) Reply Affirmation of Evan M. Foulke, Esquire, in support.
CM-84668
7) Notice of Cross Motion.
8) Affirmation of G. Lawrence Dillon, Esquire, Assistant Attorney General, in opposition to Claimant's motion, and in support of Defendant's cross motion, with an exhibit attached thereto.
9) Affidavit of Evan M. Foulke, Esquire, sworn to March 24, 2014, in opposition, with exhibits attached thereto.