Opinion
# 2011-048-003 Motion No. M-79947
09-06-2011
GARY J. RUNDLE v. THE STATE OF NEW YORK
Synopsis
Claimant's motion seeking permission to file late claim denied based on claimant's failure to establish excusable delay and appearance of merit in a dental malpractice action. Case information
UID: 2011-048-003 Claimant(s): GARY J. RUNDLE Claimant short name: RUNDLE 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-79947 Cross-motion number(s): Judge: GLEN T. BRUENING Claimant's attorney: Gary J. Rundle, Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: By: Joan Matalavage, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: September 6, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Gary J. Rundle filed a Motion seeking Permission to File a Late Claim for injuries he sustained during a routine tooth extraction at Ulster Correctional Facility in Ulster County on July 27, 2010. In the proposed Claim, Claimant asserts that Defendant provided him with "inadequate dental care" in that Defendant "broke the tooth in half" and "left an exposed tooth" at the extraction site. Claimant also alleges that Defendant severed his "nasal canal," and "took out two teeth instead of one." As a result, Claimant asserts that he had to undergo corrective oral surgery at Downstate Correctional Facility on September 29, 2010 and that he continues to suffer from breathing problems and sensitivity at the extraction site. Defendant opposes the motion on the ground that Claimant has failed to establish that his Claim is meritorious.
In an action to recover damages for personal injuries, Court of Claims Act § 10 (3) requires that a Claim be filed with the Clerk of the Court and served upon the Attorney General within 90 days after the accrual of the Claim unless, within that same time frame, a Notice of Intention to File a Claim is served upon the Attorney General, in which event the Claim shall be filed and served within two years after its accrual. Failure to timely serve the Attorney General with the Notice of Intention, or to timely file and serve the Claim, divests the Court of subject matter jurisdiction (see Alston v State of New York, 97 NY2d 159, 164 [2001]; Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011].
Claimant states that he served upon the Attorney General a Notice of Intention to File a Claim. If such service was timely and proper, the instant Motion for Permission to File a Late Claim would not be necessary. In his Affidavit submitted in support of his Motion, Claimant asserts that he "sent [the Attorney General] a Notice of Intent in the middle of August 2010," but does not assert the method of service. In his proposed Claim, Claimant asserts that the "Notice of Intention to file claim was served . . . [on] the Attorney General on the 21st day of Jan. 2011," but does not assert the method of service. Because the Claim is alleged to have accrued on July 27, 2010, a Notice of Intention served by proper method upon the Attorney General on any day in August 2010 would be timely and the instant Motion would be unnecessary (see Court of Claims Act § 10 [3]). If, instead, the Notice of Intention was served by proper method upon the Attorney General on January 21, 2011, it would have been untimely even assuming the application of the continuous treatment rule (see Robinson v State of New York, 35 AD3d 948, 949 [3d Dept 2006]) because Claimant maintains that he underwent oral surgery on September 29, 2010. Thus, proper service on January 21, 2011 would have been nearly a month beyond the 90-day period commencing September 29, 2010. However, because Claimant has provided the Court with inconsistent facts and no documentary evidence regarding his service of the Notice of Intention, the Court concludes that no Notice of Intention was timely served and that the instant Motion is necessary for Claimant to proceed with a Claim.
If a Claimant fails to timely file or serve the Claim or fails to timely serve the Notice of Intention to File a Claim, he or she may move the Court for permission to file and serve a late Claim, so long as the applicable statute of limitations set forth in Article 2 of the CPLR has not expired (see Court of Claims Act §10 [6]). As is relevant to this action, CPLR § 214-a requires that an action for dental malpractice be commenced "within two years and six months of the act, omission or failure complained of." Accordingly, since the Claim is alleged to have accrued on July 27, 2010, Claimant's application is made within the applicable statute of limitations.
In addressing the substance of Claimant's motion, the Court of Claims is vested with broad discretion to grant or deny a motion that seeks permission to file a late claim (see Langner v State of New York, 65 AD3d 780, 783 [3d Dept 2009] after consideration of, "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" (Court of Claims Act § 10 [6]). However, "the presence or absence of any one factor should not be deemed controlling" (Matter of Martinez v State of New York, 62 AD3d 1225, 1226 [3d Dept 2009] [internal quotation marks and citation omitted]).
With respect to the excusable delay factor in Court of Claims Act § 10 (6), Claimant contends in his Affidavit submitted in support of his Motion that the delay in filing his Claim was caused by his being under "continuous care" and the Defendant's failure to comply with his two Freedom of Information Law (FOIL) requests. If true, Defendant's failure to comply with properly made FOIL requests could conceivably give rise to excusable delay in a case such as this where the Claimant's medical records are important to prosecution of the Claim. In Claimant's July 8, 2011 submission to the Court, he attached evidence of two FOIL requests, one received by Mid-State Correctional Facility on June 17, 2011, and another dated June 23, 2011 to the Orange County Sheriff's Office. However, because both of these FOIL requests were made more than eight months following Claimant's oral surgery on September 29, 2010, they cannot account for Claimant's failure to file and serve a claim or serve a notice of intention within 90 days of the surgery, again assuming application of the continuous treatment rule. Moreover, Claimant has not provided evidence to demonstrate that the injury prevented him from timely filing within 90 days of the oral surgery (see Matter of Magee v State of New York, 54 AD3d 1117, 1118 [3d Dept 2008]). Accordingly, the excusable delay factor does not weigh in Claimant's favor.
With respect to the § 10 (6) factors of notice of essential facts, opportunity to investigate, and substantial prejudice to the State, Claimant asserts that he served upon the Attorney General a Notice of Intention to File a Claim sometime in August 2010 or on January 21, 2011, and that he was shown a copy of that Notice at Downstate Correctional Facility. Defendant does not dispute Claimant's assertion or argue that these factors weigh against him. Accordingly, the Court weighs them in Claimant's favor.
Similarly, Claimant states that he has no other remedy available and Defendant does not dispute this. Accordingly, the Court weighs this factor in Claimant's favor.
With respect to the factor of whether the Claim appears to be meritorious, attached to Claimant's moving papers is a proposed Claim together with a photocopy of a document entitled "Dental Treatment Record" dated March 28, 2010 and a photocopy of a document purporting to list the "Dental Services Provided" to Claimant. In opposition to Claimant's motion, Defendant asserts that Claimant has failed to establish that his proposed Claim has the appearance of merit. Specifically, Defendant contends that Claimant's failure to provide an expert's affidavit to establish that Defendant breached the standard for good and acceptable treatment of Claimant and that such breach was the proximate cause of the injury necessitates the denial of Claimant's motion. (see Affirmation of Joan Matalavage, Esq., Paragraph 5).
While the appearance of merit may arguably be the most crucial factor in § 10 (6) (see Matter of Martinez v State of New York, 62 AD3d at 1226), it does not require a Claimant to definitively establish the merits of the proposed Claim. Rather, Claimant needs to establish that the proposed Claim is not "patently groundless, frivolous or legally defective, and the record as a whole must give reasonable cause to believe that a valid cause of action exists" (Sands v State of New York, 49 AD3d 444, 444 [1st Dept 2008]; see Matter of Martinez v State of New York, 62 AD3d at 1227). In the instant Motion, Claimant must provide some "medical evidence to support his allegations of dental malpractice" (Matter of Gonzalez v State of New York, 299 AD2d 675, 676 [3d Dept 2002]). While a medical expert opinion regarding the standard of dental care may be more persuasive than medical records alone to demonstrate the appearance of merit, the latter may be sufficient in certain cases. (see Matter of Caracci v State of New York, 178 AD2d 876, 877 - 878 [3d Dept 1991]; De Paolo v State of New York, 99 AD2d 762, 762 [2d Dept 1986].
Here, however, the two medical records attached to the proposed Claim do not support a claim for malpractice. The record entitled "Dental Treatment Record" appears to be a record of Correctional Medical Care, Inc., and was signed and dated on March 28, 2010. The proposed Claim neither references this record nor explains its origin and relevance. On its face it contains three entries. The first entry, "decay pain 3.28.10," appears to indicate that Claimant reported decay and pain on March 28, 2010. The second entry, "ext site c/o pain, smells 'infection' 8.26.10," appears to indicate that Claimant reported pain and the smell of infection at the extraction site on August 26, 2010. The third entry, "pain 12-31-10" appears to indicate that Claimant reported pain on December 31, 2010. Thus, this record appears to document three visits of Claimant to Correctional Medical Care, Inc. Nothing in this record, however, characterizes or opines upon the dental care allegedly negligently performed on July 27, 2010. Similarly, it does not opine upon the source of the pain reported by Claimant.
The second record, entitled "Dental Services Provided," consists of handwritten notes that appear to document Claimant's visits for dental care. Portions of it document Claimant's complaints, and other portions document services provided. Again, the Claim neither references this record nor explains its origin and relevance. Likewise, this record documents several visits that Claimant made for services at some undisclosed location. While the Court notes that some of the entries seem to be the same as those that appear on the "Dental Treatment Record," several other entries are nearly illegible. However, one legible entry contradicts Claimant's assertion that his nasal canal was severed in that the entry states, "no nasal connection noted." While one partially legible entry indicates that an x-ray revealed a root present and Claimant was referred to "OS," it does not hint that the presence of the root resulted from negligent dental care. Nothing indicates that a standard of care was not followed, and nothing suggests that two teeth were extracted when only one should have been extracted.
Furthermore, these two records do not identify who performed the tooth extraction complained of. Assuming for the purposes of this motion that Defendant performed the tooth extraction complained of, the records submitted do not indicate that Defendant failed to follow a standard of care which caused Claimant's injury. Even assuming that the tooth broke while being pulled by Defendant, without more evidence, it seems just as likely as not that the tooth broke because it was badly decayed, and that oral surgery was required to remove the remaining tooth part or roots. The need for oral surgery does not of itself imply negligence. The Court has been provided with no medical evidence that a standard of care was not followed. Accordingly, the record as a whole does not give reasonable cause to believe that a cause of action for negligence exists. While the Court recognizes that the Claimant appears to have had a painful dental experience, it cannot conclude with the evidence before it that the proposed claim appears to be meritorious. This factor weighs against Claimant.
After balancing the factors set forth in Section 10 (6), and concluding that the factors of excusable delay and appearance of merit weigh against Claimant, the Motion is denied without prejudice to a subsequent motion made within the expiration of the statute of limitations and with adequate medical evidence supporting a claim for negligence.
September 6, 2011
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims
The following papers were read and considered by the Court:
Claimant's Affidavit in Support of Motion for Permission to File Late Claim, filed April 7, 2011, with proposed Claim and attached exhibits consisting of four pages;
Affidavit of Joan Matalavage, Esq., sworn to on June 13, 2011;
Claimant's letter to the Court received July 13, 2011.