Opinion
# 2020-040-023 Motion No. M-94696
05-04-2020
DEVIN GRAY v. THE STATE OF NEW YORK
ADAMS & COMMISSIONG LLP By: Martin E. Adams, Esq. LETITIA JAMES Attorney General of the State of New York By: Michael T. Krenrich, Esq., AAG
Synopsis
Motion to serve and file a Claim late pursuant to CCA § 10(6) granted in part.
Case information
| UID: | 2020-040-023 |
| Claimant(s): | DEVIN GRAY |
| Claimant short name: | GRAY |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-94696 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | ADAMS & COMMISSIONG LLP By: Martin E. Adams, Esq. |
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Michael T. Krenrich, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | May 4, 2020 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, the application of Movant, Devin Gray, to serve and file a late claim pursuant to Court of Claims Act § 10(6), is granted in part and denied in part.
The proposed Claim, attached to the Motion papers (Ex. A), alleges that, in October 2016, Movant was incarcerated at Upstate Correctional Facility and was in the Segregated Housing Unit (hereinafter, "SHU") Building 9, Gallery B2, cell 47 (proposed Claim, ¶ 3[1]). On October 4, 2016, Movant completed a written sick call request and requested emergency sick call for swelling in his testicles, from Correction Officer (hereinafter, "CO") Lobe and CO Beane, but was not provided any medical treatment (id., ¶ 3[2]). On October 5, 2016, Movant completed a written sick call request seeking emergency sick call but was not provided any medical treatment (id., ¶ 3[3]). On October 6, 2016, Movant completed a written sick call request again seeking emergency sick call during the 3:00 p.m. to 11:00 p.m. shift from CO Lobe, but was not provided any medical treatment (id., ¶ 3[4]). On October 7, 2016, Movant requested emergency sick call through Sergeant Vesneske and he was finally brought to sick call (id., ¶ 3[5]). On October 7, 2016, Movant was taken to Alice Hyde Hospital, then to Albany Medical Center, where he was diagnosed with a left testicular torsion (id., ¶ 3[6]). It is alleged there was over a 48-hour delay in treatment. Movant's left testicle was surgically removed at Albany Medical Center (id., ¶ 3[7]).
On or about October 26, 2016, Movant filed a grievance. On November 9, 2016, he received a response to his grievance which states, in sum and substance, that no requests were noted for emergency sick call on October 4 or October 5, 2016, and that he was not seen on October 6, 2016 because no lights were on in cell, "inmate was not at the door" (proposed Claim, ¶ 3[8]). Pursuant to DOCCS Directive 4933, sick call will be conducted daily, and the CO in charge will prepare a list of all inmates who request to see a medical practitioner (id., ¶ 3[9]).
The proposed Claim further asserts that Defendant owed a duty of care and breached that duty by negligently failing to put Movant on the list for sick call (proposed Claim, ¶ 3[10]).
The proposed Claim asserts causes of action for unreasonable and unlawful detention, negligence, gross negligence, negligent infliction of emotional distress, deprivation of constitutional, civil and common law rights, negligence in the hiring and retention of incompetent and unfit employees, negligence in the supervision, training and instruction of such employees, and respondeat superior liability.
Pursuant to Court of Claims Act § 10(6), it is within the Court's discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. The proposed Claim asserts several negligence causes of action (CPLR § 214[5], a three-year Statute of Limitations). Movant asserts that the claim accrued on October 4, 2016. The Court concludes that, based upon the information provided in the proposed Claim, the statute of limitations had not yet expired as to these causes of action when the Motion was served and filed. As to any cause of action for constitutional tort, a three-year statute of limitations also applies (CPLR § 214[5]). Thus, the Motion also appears to have been timely served and filed for a cause of action asserting a violation of Movant's constitutional rights, based upon the accrual date Movant asserts.
Next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]). However, the burden rests with Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
The first factor to be considered is whether the delay in filing the Claim was excusable. Here, Movant asserts that he did not serve and file a timely Claim because of his lack of knowledge of the filing requirements. Lack of knowledge of the Court's filing requirements is not a reasonable excuse (Modern Transfer Co. v State of New York, 37 AD2d 756 [4th Dept 1971]; Fowx v State of New York, 12 Misc 3d 1184[A] [Ct Cl 2006]). In addition, confinement to a correctional facility is not an acceptable excuse for failure to timely file a claim (Matter of Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006]). However, tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua nonfor the requested relief (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., supra at 981).
The next three factors to be addressed - whether Defendant had notice of the essential facts constituting the claim, whether Defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant - are interrelated and will be considered together. Defendant does assert lack of notice of the essential facts and lack of opportunity to investigate, and, thus, that Defendant has been prejudiced as so much time has passed since the incident occurred (Affirmation of Michael T. Krenrich, Esq. [hereinafter, "Krenrich Affirmation"] ¶ 7). However, the State has failed to establish, by submitting an affidavit from a person with knowledge at Upstate, that it did not have notice of the essential facts of the case or an opportunity to investigate those facts. In the absence of such information, the Court finds that Defendant has failed to establish that it will be substantially prejudiced by the delay in filing the Claim. Those factors, therefore, weigh in Movant's favor.
The fifth factor to be considered is whether Movant has another remedy available. It appears that Movant does have at least a possible alternate remedy against the individual employees he asserts violated his rights under the U.S. Constitution that is pending in Federal Court (see Affirmation of Martin E. Adams, Esq. [hereinafter, "Adams Affirmation"], ¶ 15).
The sixth, final and perhaps most important factor to be considered is whether the proposed Claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], lv granted 16 NY3d 703 [2011], affd sub nom. Donald v State of New York, 17 NY3d 389 [2011], quoting Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]). It is Movant's burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., supra at 11-12).
At this stage of the proceeding, it should be noted the Court generally takes as true factual allegations of Movant. The Court will first address Movant's cause of action asserting negligence based upon the alleged failure to process sick call slips. When the State engages in a proprietary function, such as providing medical care, it is held to the same duty of care as private actors engaging in similar functions (Schrempf v State of New York, 66 NY2d 289, 294 [1985]; see Sebastian v State of New York, 93 NY2d 790, 793 [1999]; Zatlow v State of New York, 52 Misc 3d 440, 444 [Ct Cl 2015]). Thus, it is "well settled that the State has a duty to use reasonable care to protect the inmates in its correctional facilities" (Hill v State of New York, UID No. 2010-009-100 [Ct Cl, Midey, J., Mar. 2, 2010]; see Flaherty v State of New York, 296 NY 342, 346 [1947], Casella v State of New York, 121 AD2d 495 [2d Dept 1986]), including a "duty to provide for the health and care of inmates," which can be defined in terms of negligence (Levin v State of New York, 32 AD3d 501, 502-503 [2d Dept 2006]; see Kagan v State of New York, 221 AD2d 7, 16-17 [2d Dept 1996]; McCrossen v State of New York, 277 App Div 1160 [4th Dept 1950]; 9 NYCRR 7651.1). As with other duties in tort, however, the scope of the State's duty is "limited to risks of harm that are reasonably foreseeable" (Sanchez v State of New York, 99 NY2d 247, 253 [2002]; see Flaherty v State of New York, supra). "Ministerial neglect may be an issue where there is proof that the State failed to follow its established protocols (see Kagan v State of New York, [supra])" (Smith v State of New York, UID No. 2004-018-340 [Ct Cl, Fitzpatrick, J., Oct. 14, 2004]; see Reynolds v State of New York, UID No. 2007-039-064 [Ct Cl, Ferreira, J., Feb. 21, 2008]; Lopez v State of New York, UID No. 2003-034-015 [Ct Cl, Hudson, J., Nov. 26, 2003]). Here, Movant asserts that Defendant failed to follow Directive 4933 requiring the correction officer in charge to prepare a list of inmates who request to see a medical practitioner (Adams Affirmation, ¶ 16). The Court rejects Defendant's argument that the duty to process the sick call slips is a governmental function entitling Defendant to governmental immunity (Krenrich Affirmation, ¶¶ 12-20). Based upon the entire record, including the proposed Claim, the Court finds that the causes of action asserting negligence have the appearance of merit. Movant need only establish the appearance of merit; he need not prove a prima facie case at this stage of the proceedings.
The Court now turns to the proposed cause of action alleging negligent infliction of emotional distress. It is well settled that "[a] claim for negligent infliction of emotional distress requires a showing that defendants' conduct unreasonably endangered plaintiffs' physical safety …" (Hart v Child's Nursing Home Co., 298 AD2d 721, 723 [3d Dept 2002], quoting Dobisky v Rand, 248 AD2d 903, 905 [3d Dept 1998]; see Johnson v State of New York, 37 NY2d 378 [1975]; Estate of La More v Sumner, 46 AD3d 1262, 1264 [3d Dept 2007]). Movant has not alleged any facts that would support this proposed cause of action. Thus, the Court determines that Movant has failed to establish that the cause of action has the appearance of merit.
The Court further concludes that Movant failed to demonstrate the appearance of merit regarding the proposed cause of action asserting negligent hiring, supervision and training of Defendant's employees. The Appellate Division, Second Department stated in Decker v State of New York (164 AD3d 650, 653 [2018]):
" 'Generally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee's negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision or training' " (Henry v Sunrise Manor Ctr. for Nursing & Rehabilitation, 147 AD3d 739, 741-742 [2d Dept] [2017], quoting Talavera v Arbit, 18 AD3d 738, 738 [2005]). [Movant] did not allege that [D]efendant's employees were acting outside the scope of their employment (see Henry v Sunrise Manor Ctr. for Nursing & Rehabilitation, [supra] at 741-742; Segal v St. John's Univ., 69 AD3d 702, 703[2d Dept 2010]).
Here, Movant has not established that Defendant's employees were acting outside the scope of their employment.
The doctrine of respondeat superior makes an employer vicariously liable for the torts committed by its employees acting within the scope of his/her employment (Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933 [1999]). Pursuant to this doctrine, the employer may be liable when the employee acts negligently or intentionally, as long as the employee's tortious conduct is generally foreseeable and a natural incident of the employment (id.; Riviello v Waldron, 47 NY2d 297, 304 [1979]). Actions in the Court of Claims are brought against the State for the negligence and/or intentional torts of its employees (Court of Claims Act §§ 10[3] and [3-b]). The State has assumed responsibility for the actions of its employees while acting within the scope of their employment. There is no need for a separate respondeat superior cause of action. Thus, the Court determines that Movant has failed to establish that the cause of action has the appearance of merit.
To the extent that Movant's allegations assert deprivations under the Federal constitution, no action may be maintained in this Court against the State for alleged Federal constitutional violations (Shelton v New York State Liquor Auth., 61 AD3d 1145, 1151 [3d Dept 2009]; Lyles v State of New York, 194 Misc 2d 32, 35-36 [Ct Cl 2002], affd 2 AD3d 694, 696 [2d Dept 2003], affd on other grounds 3 NY3d 396 [2004]; Matter of Thomas v New York Temporary State Comm. on Regulation of Lobbying, 83 AD2d 723 [3d Dept 1981], affd 56 NY2d 656 [1982]). As noted above, Movant states that he has an action pending in Federal court which asserts individual employees violated his rights under the U.S. Constitution. To the extent that Movant asserts Federal constitutional violations, his remedy lies elsewhere.
To the extent the proposed Claim can be said to be asserting a cause of action for violation of Movant's State constitutional rights, the Court notes that, in Brown v State of New York (89 NY2d 172 [1996]), the Court of Appeals "recognized that, when certain requirements are met, a violation of the [New York State] Constitution may give rise to a private cause of action" (Waxter v State of New York, 33 AD3d 1180, 1181 [3d Dept 2006]; see Wagoner v State of New York, UID No. 2008-029-014 [Ct Cl, Mignano, J., Apr. 2, 2008]). In Martinez v City of Schenectady (97 NY2d 78 [2001]), however, the Court of Appeals made it clear that Brown establishes a "narrow remedy," applicable in cases where no other remedy is feasible to provide citizens with "an avenue of redress" when their private interests have been harmed by constitutional violations (Martinez v City of Schenectady, supra at 83; Waxter v State of New York, supra at 1181). Where an adequate remedy could be provided, however, " 'a constitutional tort claim … is [not] necessary to effectuate the purposes of the State constitutional protections … [invoked] nor appropriate to ensure full realization of [Movant's] rights' " (Bullard v State of New York, 307 AD2d 676, 679 [3d Dept 2003], quoting Martinez v City of Schenectady, supra at 83).
In the present case, recognition of the State constitutional cause of action is neither necessary nor appropriate to ensure the full realization of Movant's rights, because the alleged wrongs can be redressed by an alternative remedy, namely, either in a Federal Court action asserting violations of the Federal Constitution, or in the proposed causes of action for negligence as set forth above. Thus, the Court determines that Movant has failed to establish that this cause of action has merit.
While the proposed Claim asserts a cause of action asserting unreasonable and unlawful detention, Movant's counsel has not addressed it in his affirmation, and the Court finds Movant has not established the cause of action has the appearance of merit.
In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in Movant's favor as to the negligence causes of action only. The mix of circumstances presented by this case fall well within the remedial purposes of the amendments to the Court of Claims Act enacted in 1976 (L 1976, ch 280), which was designed to vest in the Court of Claims broader discretion than previously existed to permit late filing, indicated a strong concern that litigants with meritorious claims be afforded their day in court (Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, supra at 1036). Movant has provided sufficient basis for a favorable exercise of this Court's discretion to grant him leave to file a late claim against the State as set forth above. Therefore, Movant shall file with the office of the Clerk of the Court his proposed Claim only with respect to those causes of action, as set forth above, against the State of New York and serve a copy of the proposed Claim upon the Attorney General personally or by certified mail, return receipt requested. In serving and filing his Claim, Movant is directed to follow all of the requirements of the Court of Claims Act, including § 11-a, regarding the filing fee, and the Uniform Rules for the Court of Claims. Such filing and service of Movant's proposed Claim shall be made within forty-five (45) days of the filing of this Decision and Order, as such date may be affected and extended by the Administrative Order of Acting Presiding Judge Richard E. Sise, dated March 16, 2020, which tolls such time limitation periods, and until such Order expires.
May 4, 2020
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered on Movant's application for permission to file a late claim: Papers Numbered Notice of Motion, Affirmation, Proposed Claim & Exhibits Attached 1 Affirmation in Opposition & Exhibits Attached 2