Opinion
# 2016-041-029 Claim No. 126048 Claim No. 125735 Motion No. M-88125 Cross-Motion No. CM-88126
05-23-2016
GILBERT MARTIN v. THE STATE OF NEW YORK
ELMER ROBERT KEACH III, ESQ. HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Michael C. Rizzo, Esq. Assistant Attorney General
Synopsis
Defendant's cross-motion to dismiss claims for failure to accurately state date claims accrued and failure to accurately state nature of the claims is granted and claims are dismissed; claimants' motion to amend claims to state proper date and nature of claims is treated as an application to file and serve late claims and permission to file and serve late claims is granted as allegations provide cause to believe that meritorious claims may exist and the defendant has not been substantially prejudiced by delay in prosecuting the claims.
Case information
| UID: | 2016-041-029 |
| Claimant(s): | GILBERT MARTIN |
| Claimant short name: | MARTIN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | PAUL PIERCE |
| Third-party defendant(s): | THE STATE OF NEW YORK |
| Claim number(s): | 126048, 125735 |
| Motion number(s): | M-88125 |
| Cross-motion number(s): | CM-88126 |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | ELMER ROBERT KEACH III, ESQ. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Michael C. Rizzo, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 23, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimants move for permission to file and serve amended claims in these negligence actions which arose from a common set of facts and circumstances. Defendant opposes the motion and cross-moves to dismiss the claims for lack of jurisdiction based upon the claimants' failure to comply with the pleading requirements of Court of Claims Act 11 (b).
The claims allege that on February 7, 2013 an inmate at Bare Hill Correctional Facility was attacked in the vicinity of the Mess Hall by a fellow inmate. A correction officer, in an attempt to gather information about the inmate-on-inmate assault, allegedly directed claimants, and a group of fellow inmates, to leave the mess hall area and to line up near an outdoor fence. The inmates, including claimants, were allegedly ordered to "remove their hats, scarves and gloves, and place their bare hands against a metal fence. It was approximately zero degrees Fahrenheit on February 7, 2013, and the inmates, including [claimants], were allegedly required to stand with their bare hands on a freezing fence for approximately 30 minutes . . . [d]espite repeated complaints of pain."
Claimants were each granted permission to file and serve late claims against defendant and are presently part of a group of 14 claims containing the same general allegations against defendant, all arising on the same date, February 7, 2013.
Claimant's attorney affirms in support of the motion to amend the claims that discovery proceedings in a related federal civil rights lawsuit reveal that the movant's claims actually arose on February 5, 2013, rather than February 7, 2013, in a separate, though somewhat similar, incident involving inmates allegedly being ordered by correction officers to place their hands on a metal outdoor fence for an extended period in near zero degree weather.
In other words, the claims of the two moving claimants did not arise on the same date, in the same incident, as the claims of the 12 other inmates whose claims are presently pending before this Court, although the injury-producing allegations of the two separate incidents are similar.
The proposed amended claims would rectify the incorrect statements of alleged facts set forth in the two claims at issue.
Defendant argues in support of its cross-motion to dismiss the claims that the claims at issue cannot be amended because the claims are jurisdictionally defective for failure to comply with the pleading requirements of Court of Claims Act 11 (b).
The Court agrees with defendant's assertion that if the Court lacks of jurisdiction over the claims, as filed and served, for failure to comply with the pleading requirements of Court of Claims Act 11 (b), that failure may not be cured by amendment of the claims (see Hogan v State of New York, 59 AD3d 754, 755 [3d Dept 2009]; Manshul Constr. Corp. v State Ins. Fund, 118 AD2d 983 [3d Dept 1986]; Roberts v State of New York, 4 Misc 3d 768 [Ct Cl 2004]).
Defendant's jurisdictionally-based cross-motion to dismiss the claims will therefore be considered first.
Court of Claims Act 11 (b) provides that:
"The claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed. . . ."
A claim against the State is permissible only as a result of the State's waiver of sovereign immunity and the statutory requirements conditioning suit must therefore be strictly construed (Kolnacki v State of New York 8 NY3d 277, 280 [2007]). The Kolnacki court noted that the requirements of section 11 (b) are "substantive conditions upon the State's waiver of sovereign immunity" (quoting Lepkowski v State of New York, 1 NY3d 201, 207 [2003]) and that the failure to satisfy any of the conditions is a jurisdictional defect (Kolnacki, 8 NY3d at 280-281). The Kolnacki decision stresses that "nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary" (Kolnacki, 8 NY3d at 281).
The strict pleading requirements of Court of Claims Act § 11 (b) were reiterated in Rivera v State of New York (52 AD3d 1075, 1076 [3d Dept 2008]):
"Statutory conditions placed on claims against defendant must be strictly construed, mandating a dismissal for lack of jurisdiction if the claim does not meet the substantive pleading requirements found in Court of Claims Act § 11 (b)."
The Rivera court reminded that:
"The Court of Claims Act does not require [defendant] to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Rivera, 52 AD3d at 1076, quoting Lepkowski 1 NY3d at 208).
Here, the claims set forth an incident date, and factual allegations, different from the actual date and facts of the incident involving the claimants. The February 5, 2013 incident involved different inmates and correction officers from the February 7, 2013 incident, although both incidents allegedly resulted in inmates being ordered by correction officers to place their hands on a metal outdoor fence for an extended period in near zero degree weather.
Defendant further cogently points out that the movants submitted verified proposed claims and supporting affidavits in their prior applications to file late claims that gave an incorrect date and incorrect facts as to when and how their causes of action arose.
The February 5, 2013 occurrence described in the amended proposed claims is an entirely separate and distinct, though similar, incident from the February 7, 2013 occurrence described in the claims served and filed. Defendant is correct that claimants failed to comply with the substantive pleading requirements of Court of Claims Act 11 (b) in serving and filing the claims, and the Court therefore lacks jurisdiction over the claims. The claims (Claim 125735 and Claim 126048) are dismissed.
The Court's inquiry is not concluded however. Although denominated a notice of motion for leave to file an amended claim, the claimants' notice of motion also states that claimants seek "an order granting Claimants leave to file a late claim under New York Court of Claims Act § 9(8)."
The Court will exercise its discretion to treat the claimants' motion as an application to file and serve late claims pursuant to Court of Claims Act 10 (6) (see Court of Claims Act 9 [8]; Ruston v New York State Insurance Fund UID No. 2010-009-030[Ct Cl, Midey, J., Oct. 13, 2010]). As in Ruston, which also involved a motion to amend a jurisdictionally defective claim, both claimants and defendant have "addressed the statutory factors which must be considered by a court in determining whether to grant permission to serve and file a late claim under § 10 (6) of the Court of Claims Act."
Court of Claims Act 10 (6) provides that the Court, upon application and in its discretion, may permit the late filing and service of a claim "at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules."
The amended proposed claim accrued on February 5, 2013 and the instant application was made on February 4, 2016, within three years of accrual. The amended proposed claims allege a cause of action sounding in negligence. CPLR 214 provides a three-year period to commence such an action and the application is not time-barred by CPLR Article 2.
In determining the application, Court of Claims Act 10 (6) provides that:
"[T]he court shall consider, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy."
In reviewing a late claim application, "the Court of Claims is required to consider, among other factors, those enumerated in Court of Claims Act § 10 (6), no one factor being controlling" (Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]; see Matter of Duffy v State of New York, 264 AD2d 911, 912 [3d Dept 1999]). In fact, "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]).
Further, "it is well settled that the Court of Claims' broad discretion in this area should be disturbed only in the face of clear abuse" (Calco v State of New York, 165 AD2d 117, 119 [3d Dept 1991], lv denied 78 NY2d 852 [1991]).
While the record conclusively shows that until recently both claimants and defendant were under the same mistaken belief that the instant claims arose from the February 7, 2013 incident, rather than from the similar incident which occurred two days earlier, the Court concludes that the claimants have not offered a reasonable excuse for their failure to file and serve the claims within ninety days of February 5, 2013. However, "the 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 non for the requested relief" (Bay Terrace Coop. Section IV, 55 NY2d at 980-981).
With respect to defendant's notice of the February 5, 2013 incident, and its opportunity to investigate its potential liability, the record shows that defendant was immediately made aware of the facts and circumstances underlying the claims. The record further shows that claimants sought medical treatment for frostbite and, more significantly, claimants filed grievances about the incident and these grievances were quickly investigated by defendant. Finally, it is clear that defendant has aggressively investigated and defended these and other inmate claims arising at Bare Hill on February 5, 2013 and February 7, 2013, respectively.
Notably, the record on these motions demonstrates that the defendant knew, or should have known, from the outset of both the Court of Claims actions and the related federal claims that there were two separate incidents two days apart which involved these similar injury-producing allegations. Despite this, defendant apparently conflated the two separate incidents in the course of document and witness disclosure and in deposition testimony.
The Court finds that defendant has not been prejudiced by any delay in the filing and service of the claims (see Matter of Hughes v State of New York, 25 AD3d 800 [2d Dept 2006]).
Although claimants may arguably have an alternative remedy in the U.S. District Court for possible federal constitutional violations, the Court notes that the standard of proof in such a federal action (at least insofar as the defendant's actions constituted deliberate indifference to claimants' complaints of pain from the cold) may be higher than that imposed in a simple negligence action in state court.
Section 10 (6) requires that the proposed claim not be "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" (Rizzo v State of New York, 2 Misc 3d 829, 834 [Ct Cl 2003]; see Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl 2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). In Witko v State of New York (212 AD2d 889, 891 [3d Dept 1995]), the court noted that a proposed claim offered in a section 10 (6) application need only have "the appearance of merit."
Claimants are subject to the custody and control of the State of New York while incarcerated and defendant is charged with a duty of reasonable care and supervision while exercising its power of custody and control.
Specifically, the State owes "'a duty to use reasonable care to protect its inmates from foreseeable risks of harm'" (Leibach v State of New York, 215 AD2d 978, 979 [3d Dept 1995], quoting Colon v State of New York, 209 AD2d 842, 843 [3d Dept 1994]).
However, "[t]his does not mean that the State is thereby an insurer of inmate safety, and negligence will not be inferred from the mere occurrence of an accident" (Melendez v State of New York, 283 AD2d 729 [3d Dept 2001]).
Defendant has not offered admissible factual opposition to the allegations of the amended proposed claims and the allegations are deemed true for purposes of this application (Schweickert v State of New York, 64 AD2d 1026 [4th Dept 1978]; Cole v State of New York, 64 AD2d 1023 [4th Dept 1978]).
The Court finds that the allegations of the amended proposed claims, in particular that defendant caused claimants to endure prolonged unprotected exposure in frigid conditions, while grasping a metal fence, sets forth the elements of an action for negligence that proximately caused the injuries and damages sustained by claimants.
Based upon a balancing of the factors set forth in section 10 (6), the Court grants the claimants permission to file and serve the amended proposed claims in compliance with §§ 11 and 11-a of the Court of Claims Act within thirty (30) days of the filing of this decision and order with the Clerk of the Court of Claims.
May 23, 2016
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion For Leave to File an Amended Claim, filed February 5, 2016; 2. Affirmation of Elmer Robert Keach III, dated February 4, 2016, and annexed exhibits, including proposed amended claim; 3. Defendant's Notice of Cross-Motion to Dismiss, filed February 18, 2016; 4. Affidavit of Michael C. Rizzo, sworn to February 2016, and annexed exhibits; 5. Affirmation of Elmer Robert Keach III, dated March 4, 2016, and annexed exhibits; 6. Reply Affidavit of Michael C. Rizzo, sworn to March 7, 2016.