Opinion
# 2019-040-044 Claim No. 129825 Motion No. M-93396
06-20-2019
CHRIS LEE v. THE STATE OF NEW YORK
Gary E. Divis, Esq. LETITIA JAMES Attorney General of the State of New York By: Sean B. Virkler, Esq., AAG
Synopsis
Claimant's Motion for Partial Summary Judgment granted.
Case information
| UID: | 2019-040-044 |
| Claimant(s): | CHRIS LEE |
| Claimant short name: | LEE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129825 |
| Motion number(s): | M-93396 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Gary E. Divis, Esq. |
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Sean B. Virkler, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | June 20, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Claimant's Motion seeking partial summary judgment on the issue of liability regarding Defendant's negligence is granted.
The Claim was filed in the office of the Clerk of the Court on June 12, 2017. The pertinent underlying facts of the case are not in dispute. Claimant entered the Department of Corrections and Community Supervision system (hereinafter, "DOCCS") on December 1, 2015 (Ex., p. 17 attached to Motion). At the Ulster Reception Center, Claimant advised the medical staff that he had a history of seizures (id., pp. 18, 28). It was determined that Claimant had a medical need for a lower bunk (id., p. 18) and was issued a bottom bunk pass that he was informed would follow him to whatever facility at which he was housed (id., pp. 28-29). Claimant was transferred to Watertown Correctional Facility (hereinafter, "Watertown") on January 11, 2016 (id., p.17). By Watertown memorandum, dated January 11, 2016, under the subject "Program Restriction," Number 2, "Medical Comments," is handwritten "Bottom Bunk" (id., p. 16, see also, id., p. 15, Watertown Memorandum, dated March 9, 2016, under "Medical Comments," are the notations: lower bunk, no heights and no working around machines).
Claimant attached to his motion over 100 pages of documents. Rather than separately number each exhibit, he has individually numbered the pages. On most pages, there are two numbers, one is handwritten (or is the page of a deposition transcript) and the other is a Bates Stamp number. The Court will refer to the Bates Stamp number of the page when referring to Claimant's exhibit.
Subsequently on June 16, 2016, Claimant was transferred from Watertown to Gouverneur Correctional Facility (hereinafter, "Gouverneur") (Ex., p. 17) and was assigned to the Special Housing Unit (hereinafter, "SHU") 200 ( id., pp. 17, 78). Donna Prashaw, RN, the SHU nurse at Gouverneur, conducted a Screening and Physical Assessment for Placement in a Double-Cell form for Claimant (id., p. 19). Under the Heading "I. Medical Record Screening Review," Subdivision D states:
D. Are there any known medical indications requiring him to be placed in a bottom bunk bed? (e.g. medically documented - back problems (through radiologic or surgical physician review), medication for seizure disorder, [illegible]/insulin dependent, age over 60 years, permanent physical disability {e.g. amputee, rheumatoid arthritis} diagnosis of sleep apnea, current acute injury or serious medical conditions {e.g. fractures, recent MI, advance arthritis})
No Yes (bottom bunk) Report answers to C and D to the DSS or designee immediately
Signed: ______________________ Date: ___________
Ms. Prashaw put an "x" in the yes box, along with the notation "seiz," which means seizures (id., pp. 89-90). Claimant's medical record indicated he suffered from seizures and he was taking an anti-seizure medication (id., pp. 82, 85). She then, signed and dated the entry June 16, 2016. Under the Heading "II. Physical Assessment" Subdivision C states:
C. From your physical assessment of this person, are there medical indications requiring him to be placed [illegible] bunk bed?
No Yes (bottom bunk) Report answer to [illegible] the DSS or designee immediately
Signed: ______________________ Date: ___________
Again, the nurse put an "x" in the yes box, along with the notation "seiz," which means seizures, then signed and dated the entry June 16, 2016 (Ex., pp. 19, 89-90). Ms. Prashaw testified, at her examination before trial held on September 14, 2018, that, once the determination of bunk and cell placement is made, medical fills out a form that is given to the Deputy Superintendent for Security's designee, which is usually a sergeant and the sergeant places the form in a notebook that is maintained for the indicated inmate (Ex., pp. 88-89; see 7 NYCRR § 1701.5[c][6][i]).
Despite Ms. Prashaw's finding that Claimant was to be placed in a lower bunk, DOCCS placed Claimant in an upper bunk from June 16, 2016 until the evening of July 21, 2016 (Ex., pp. 17, 26), when Claimant fell out of his bunk, at approximately 9:35 p.m., "in need of medical assistance appearing to have [had] a seizure" (Ex., p. 21 [Unusual Incident Report]). The Unusual Incident Report further reports that "upon evaluation, it was determined that [Claimant] had a break through seizure …" (id.). Claimant asserts that Defendant was negligent in failing to assign Claimant to a bottom bunk, and that such failure resulted in the injuries that Claimant sustained when he fell out of the top bunk while suffering from a seizure.
Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley's Milk Co. v Klein, 24 AD2d 920 [3d Dept 1965]; Wanger v Zeh, 45 Misc 2d 93 [Sup Ct, Albany County 1965], affd 26 AD2d 729 [3d Dept 1966]). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). "Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., supra at 324; see Winegrad v New York Univ. Med. Center, supra at 853).
In support of his Motion, Claimant submitted a copy of DOCCS Policy 1.49 regarding lower bunk placement (Ex., p. 23). The policy states, in pertinent part:
I. POLICY:
[DOCCS] recognizes medical criteria that may warrant an inmate's placement in a lower bunk.
II. PROCEDURE:
A. Placement in a lower bunk must meet or have one of the following clinical criteria:
- On medication for a seizure disorder …
If the criteria listed above is determined to be longstanding, Problem Code SR1D (MED REQUIREMENT LOWER BUNK) is to be entered on the FHS1 Problem List.
(Ex., p. 23; emphasis in original).
In addition, Claimant submitted a copy of a memorandum from the Deputy Superintendent for Administration, Susan M. Fortin, at Gouverneur, to Claimant dated October 6, 2016, which states in pertinent part:
On behalf of Superintendent O'Meara, I am responding to your letter received September 06, 2016.
I have completed an investigation into the chain of events that allegedly led up to your injury sustained on 7/21/2016 in the S-Block. Hopefully I will address all of your concerns within the outline below, but if not, please let me know.
• On 6/16/2016, upon your draft into the S-Block, the "S-Block Double Cell/Bottom Bunk" form that was completed by the RN assigned to duty that day was completed, indicating that your bunk assignment should be "bottom bunk only/seiz" [see Ex., p. 19].
• On 6/17/2016, form #2200 "SHU Double-Cell Information Sheet" was approved by the Deputy Superintendent for Security based on information provided to him. On this form, the Health Services Review results indicate that you were a "Med 2" and approved. The "bottom bunk only" check box is not clearly indicated [see Ex., p. 20].
• The copy of the unit log book dated 6/16/16, Tour III (3-11pm) indicates you coming into the S-Block and assigned to bunk B-5-T.
• On 7/20/2016, you received a misbehavior report written by CO L. Gutierrez, indicating that you were found to have covered your night light with a towel; refused to remove it after given a direct order to do so and had also been warned the day before about NOT doing that exact same thing. This action resulted in a guilty determination by the hearing officer and yielded a punishment of twenty (20) days Keeplock status.
• On 7/21/2016, you were found to be lying on the floor of your cell after what was to be determined later as a fall from the top bunk as the result of a "break-through" seizure. Immediate medical attention was provided, at the time, by facility medical staff on duty, followed up by emergency medical care provided at the emergency room of the Gouverneur Area Hospital. Among the injuries sustained was a fractured "pinky" finger.
(Ex., p. 13).
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). Moreover, where "a medical determination has been made, directing a certain course of action, the failure to comply with the medical direction presents a cause of action sounding in ordinary negligence (see Mossman v Albany Med. Ctr. Hosp., 34 AD2d 263, 264 [1970]). Ministerial neglect may also 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]).
In addition to DOCCS Policy 1.49, regarding an inmate's placement in a lower bunk Title 7 of New York Codes of Rules and Regulations (hereinafter, "NYCRR") § 1701.5 requires a medical evaluation to determine whether an inmate being placed in a double-cell requires, due to a medial condition, a lower bunk bed assignment (7 NYCRR § 1701.5[c][6][i]). After an inmate has been assigned a lower bunk bed for medical reasons, the assignment may not be changed without consulting with medical staff (7 NYCRR § 1701.7[e]).
The Court concludes that Claimant has made the prima facie showing required to warrant judgment as a matter of law, that Defendant was negligent in failing to follow a medical determination made by the medical staff at Gouverneur, who conducted a mandatory health assessment following Claimant's transfer, in part to determine his suitability for double-cell occupancy. Among the factors considered in that assessment was his medical screening (7 NYCRR § 1701.5[c][6][i]), specifically "the existence of a medical condition that would preclude double-cell housing or require placement in a bottom bunk [emphasis added] …". In this case, the medical staff at Gouverneur made a determination that Claimant's medical condition necessitated his assignment to a lower bunk, and the failure of the facility to follow that placement constituted negligence if not refuted by Defendant.
In opposition to the Motion, Defendant has submitted the Affirmation of Assistant Attorney General Sean Virkler, Esq. (hereinafter, "Virkler Affirmation"). Mr. Virkler states:
5. The Claimant was received at the [Gouverneur] SHU200 on June 16, 2016. Annexed hereto as Exhibit A is a copy of his movement history. A SHU Double Cell Information Sheet was completed the next day, June 17, 2016. A copy of the form is annexed hereto as Exhibit B. The box noting that the Claimant was "Approved" for Health Services is checked and there is a note indicating "Med 2." The box indicating "bottom bunk only" is not checked.
6. Annexed hereto as Exhibit C is an affidavit signed by Sherry LeClair, Inmate Records Coordinator II for Bare Hill Correctional Facility. In her affidavit, Ms. LeClair states that she has conducted a thorough search of Claimant's records for any and all permits that he had during his most recent incarceration. She attached a copy of all such permits to her affidavit. Importantly, her search shows that the Claimant did not have a lower bunk permit at the time of the incident in this case.
(Virkler Affirmation, ¶¶ 5,6 ).
Defendant has not contested the fact that Nurse Prashaw completed the Screening and Physical Assessment for Placement in a Double-Cell and found that Claimant's medical condition required that he be placed in a bottom bunk (Ex., p. 19). As for the failure to check the "bottom bunk only" box on the SHU Double-Cell Information Sheet, the Court agrees with Claimant that this provides further proof that DOCCS' security officers failed to implement the direction of medical staff to place Claimant in a bottom bunk. In addition, the Court has reviewed Ms. LeClair's Affirmation and the Exhibits attached thereto (Ex. C attached to Virkler Affirmation). Ms. LeClair states she has reviewed DOCCS records for any permits Claimant had during his incarceration. A review of those permits reveals that they are all for material items, not medical permits for bottom bunk assignments. Ms. LeClair does not address medical permits in her affirmation. The Court concludes that this information does not raise a triable issue of fact regarding whether Claimant possessed a bottom bunk permit, both prior to arriving at Gouverneur and after his seizure on July 21, 2016 resulting in his fall from the upper bunk.
Defendant also attached to Mr. Virkler's Affirmation the Affidavit of Jennifer Mullaly (hereinafter, "Mullaly Affidavit"), the Nurse Administrator at Gouverneur. Ms. Mullaly sates that she reviewed the sick call slips and master call out lists from June 16, 2016 up until the day before the incident to determine whether the Claimant was seen by medical personnel. She determined, after a review of the records, that Claimant did not submit a sick call slip during the time period in question and was not seen by medical personnel during that time (Mullaly Affidavit, ¶¶ 3,4).
This information provided by Ms. Mullaly may be pertinent to the issue of Claimant's comparative fault. "To be entitled to partial summary judgment a [claimant] does not bear the double burden of establishing a prima facie case of defendant's liability and the absence of his or her own comparative fault" (Rodriguez v City of New York, 31 NY3d 312, 324-325 [2018]; Schleede v State of New York, 170 AD3d 1400, 1402 [3d Dept 2019]; Thompson v Brown, 167 AD3d 1310, 1311 [3d Dept 2018]).
Therefore, the Court finds and concludes that Defendant has not refuted Claimant's proof and has not raised a triable issue of fact. The Court finds that Defendant was negligent in failing to place Claimant in a bottom bunk after the medical staff at Gouverneur made a determination that Claimant's medical condition necessitated his assignment to a bottom bunk (Smith v State of New York, supra; Lopez v State of New York, supra).
Therefore, based upon the foregoing, Claimant's Motion for summary judgment as to liability is granted. The Court will contact the parties in due course to establish a conference date.
June 20, 2019
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read on Claimants' Motion: Papers Numbered Notice of Motion, Affirmation, Exhibits Attached & Memorandum of Law 1 Affirmation in Opposition & Exhibits Attached 2 Reply 3 Filed Papers: Claim, Answer