Opinion
# 2019-028-524 Claim No. 131794 Motion No. M-92730 Motion No. M-92754
05-16-2019
THEIL STAPLETON v. THE STATE OF NEW YORK
THEIL STAPLETON, PRO SE HON. LETITIA JAMES, ATTORNEY GENERAL BY: Matthew H. Feinberg, Esq. Assistant Attorney General
Synopsis
Case information
| UID: | 2019-028-524 |
| Claimant(s): | THEIL STAPLETON |
| Claimant short name: | STAPLETON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 131794 |
| Motion number(s): | M-92730, M-92754 |
| Cross-motion number(s): | |
| Judge: | RICHARD E. SISE |
| Claimant's attorney: | THEIL STAPLETON, PRO SE |
| Defendant's attorney: | HON. LETITIA JAMES, ATTORNEY GENERAL BY: Matthew H. Feinberg, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 16, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered on the pending motions:
1-3 Notice of Motion, Affirmation in Support of Defendant's Motion to Dismiss by Matthew H. Feinberg, Assistant Attorney General, Memorandum of Law and attached exhibit;
4-6 Notice of Motion for Permission to file Late Claim, Affirmation in Support of Motion for Permission to File a Late Claim by Theil T. Stapleton, Claimant, Memorandum of Law;
7-8 Defendant's Affirmation in Opposition to Claimant's Motion for Permission to File a Late Claim, Memorandum of Law and attached exhibit;
9 Letter to Court from Theil T. Stapleton, Claimant, received November 19, 2018;
10 Filed paper: Claim No. 131794
In his filed claim, Theil T. Stapleton, an inmate proceeding pro se, alleges that defendant's agents at Sing Sing Correctional Facility failed to provide him with adequate medical care for a skin irritation and pain in his knees, by failing to properly examine him and to renew his prescriptions on March 29, 2018. He alleges that "[a]s of the date of this writing", he continued to not receive treatment and experienced "pressing and persistent pain." [Claim No. 131794, ¶5]. The claim was signed and verified on June 22, 2018. It was filed in the office of the Chief Clerk of the Court of Claims on August 1, 2018 and asserts that a notice of intention to file a claim [NI] was served "with the filing of the claim." [Claim No. 131794, ¶6]. An affidavit of service filed with the claim indicates that the NI and the claim were served certified mail, return receipt requested on the Attorney General's office, but does not say when. No other proof of service was filed in the office of the Chief Clerk of the Court of Claims. 22 NYCRR §206.5(a). Motion to Dismiss [M-92754]
Defendant moves by way of pre-answer motion to dismiss the claim, arguing that the claim was served by regular mail only on July 2, 2018 and that the Court thus lacks jurisdiction because the claim was not served by a method required by statute. Court of Claims Act §§10 and 11.
Court of Claims Act §11(a)(i) provides that a claim must be served personally or by certified mail, return receipt requested, upon the attorney general within the times prescribed in Court of Claims Act §10. Service is complete when it is received in the Attorney General's Office. Court of Claims Act §11(a)(i).
It is generally preferable that the State's submission on a motion to dismiss on this jurisdictional ground include an affidavit by a person with knowledge to introduce the State's exhibits and attest to there being no other documents received from the claimant pertinent to the claim, or other facts not properly presented by an attorney's affirmation alone. Nonetheless, defendant's inclusion here of photocopies of the claim documents received with an attorney's affirmation suffices to meet the State's burden on the motion alleging a failure to serve the claim by a recognized statutorily required method, and the resulting jurisdictional defect.
More specifically, the photocopy of the envelope in which the claim was delivered to the Attorney General's office does not show that the appropriate postage for the category of mail was paid, nor is there any indicia of the remains of a green return receipt card. [Feinberg Affirmation, Exhibit A]. Taken together with the affidavit of service that does not provide the essential information as to when the documents were served, and the claimant's failure to provide any appropriate opposition to the motion, defendant's motion to dismiss is hereby granted, and Claim No. 131794 is in all respects dismissed.
In a letter to the Court received November 19, 2018, claimant references Motion No. M-92730 - his late claim motion - and indicates that the "prison has a practice that prohibits timely and proper access to the courts" and further writes that he has "sought instruction to resolve this matter (service) from the attorney general's office and from this court" as to "alternate means of service." Claimant does not provide any proof that he paid for certified mail, return receipt requested service but such was not provided per his request, or otherwise lay a foundation for the Court to consider, for example, whether an estoppel should be applied. See Wattley v State of New York, 146 Misc 2d 968,969 (Ct Cl 1990)(Court denied defendant's motion to dismiss for improper service. Claimant said he had attached the disbursement form for certified mail to his claim, but it apparently fell off, and additionally presented evidence that his inmate account was debited for the cost of certified mail, return receipt requested service. "Absent sufficient rebuttal (see, Cole v State of New York , 64 AD2d 1023, 1024), we find the circumstances call for the invocation of equitable estoppel to prevent defendant from being rewarded for its own apparent breach of duty...(citation omitted)"); cf, Rivera v State of New York, 5 AD3d 881 (3d Dept 2004)( "[C]laimant . . . failed to demonstrate that the mailroom delay arose out of any omissions or malfeasance on the part of the facility's mailroom personnel . . . [A] review of the record reveals that the mailroom personnel followed proper procedures in processing claimant's legal mail."), McGlotten v State of New York, UID No. 2008-030-510 (Ct Cl, Scuccimarra, J., Mar. 4, 2008) ( Defendant's motion to dismiss claim based upon improper service granted. "[C]laimant's statement in his Response to this motion - to the effect that he requested that the mail be sent by the appropriate means and that mailroom personnel did not send the mail in the manner requested - has been offered to rebut defendant's motion. No copies of any disbursement request forms, or indication on a transmittal of some type of his intentions to the mailroom - the words 'legal mail' written on the outside of an envelope... do not necessarily mean that the item should be sent certified mail, return receipt requested - or a copy of his inmate account statement showing a withdrawal for the correct amount, have been offered to substantiate his statement.... (citation omitted). Claimant has not provided any substantiation of his alleged attempt to serve the mail as statutorily required. "). Two cases claimant cites [ Genway Corp. v Elgut, 177 AD2d 467 (2d Dept 1991); Gross v Fruchter, 230 AD2d 710 (2d Dept 1996)], involving service in State Supreme Court where the plaintiff had established prima facie proof of service on the defendant under Civil Practice Law and Rules §308(4) - alternate personal service under that statute - are not applicable here to proof of proper service as statutorily required under the Court of Claims Act.
Motion for Late Claim Relief [M-92730]
Claimant moves for late claim relief, seemingly in response to receiving the defendant's motion to dismiss Claim No. 131794, since he notes that "[t]he defendant's only contention for dismissal is premised solely upon the service process." [Stapleton Affirmation in Support, ¶3]. In order to determine an application for permission to serve and file a late claim, the Court must consider, "among other factors," the six factors set forth in Court of Claims Act §10(6). The motion is timely made within the time constraints applicable to someone who might bring suit in a forum other than the Court of Claims, premised on the dates of accrual alleged of March 29, 2018 or June 22, 2018, and the causes of action alleged sounding in either negligence or medical malpractice. See Civil Practice Law and Rules §§214(5) (negligence, three years), 214-a (medical malpractice, two years, six months).
Defendant opposes the motion, arguing that no copy of the proposed claim is included and that thus denial is warranted on that ground alone (while acknowledging that claimant "mentions a prior Claim he filed" and that "[c]laimant appears to be referring to a Claim regarding the same allegations as the ones herein"). [Memorandum of Law, Page 4]. While it is true that generally a claimant should include a copy of the proposed claim with his motion, it is obvious that the claim for which the claimant seeks late claim relief is the same one defendant moved to dismiss, thus this "defect" is illusory.
Defendant also argues, more persuasively, that claimant has not adequately addressed the factors a Court must consider in evaluating a claim for late claim relief, particularly the lack of reasonable excuse for the delay and the appearance of merit.
Claimant does not provide much of an argument by way of excuse, except to conflate arguments about the continuous treatment doctrine - which is really not pertinent when the accrual date alleged is within a period of time that a motion such as this one could be made - and an assertion about not being able to use certified mail because he had insufficient funds.
If claimant is alleging continuous treatment based upon timeliness issues surrounding the original claim, the claim was not dismissed because of alleged untimeliness. Thus whether the continuous treatment doctrine applies is irrelevant.
With regard to allegations of insufficient funds, claimant has not provided any substantiation of the assertion that he was not afforded an advance for legal mail, or engaged in the process to obtain an advance and was denied. 7 NYCRR §721.3; see e.g. Simpson v State of New York, UID No. 2008-030-558 (Ct Cl, Scuccimarra, J., Sept. 15, 2008); Chatin v State of New York, UID No. 2001-013-023 (Ct Cl, Patti, J., Oct.2001). These arguments do not address why a claim or the NI was not timely and properly served within 90 days of the potential dates of accrual asserted in the claim of March 29, 2018 and June 22, 2018.
Claimant does not address the other factors for late claim relief except for the appearance of merit, which is only marginally addressed by his own repetition that he has not received adequate treatment. With regard to those late claim factors not addressed by either party, given that the State was served with a copy of the claim - albeit by an improper method - relatively soon after the alleged failure to continue claimant's prescriptions or properly examine him, the State had notice of the essential facts constituting the claim and an opportunity to investigate the circumstances underlying the claim, and would not be prejudiced. There does not appear to be any other remedy available.
A claim appears to be "meritorious" within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates that there is reasonable cause to believe that a valid cause of action exists. Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 (Ct Cl 1977). Something less than a prima facie case is required, which may still be problematic at times when causes of action are asserted that will require expert testimony in order to establish a cause of action at trial, such as a medical malpractice claim. Matter of Perez v State of New York, 293 AD2d 918 (3d Dept 2002); Schreck v State of New York, 81 AD2d 882 (2d Dept 1981). At other times, furnishing medical records may be sufficient. See De Paolo v State of New York, 99 AD2d 762 (2d Dept 1984).
In proposed claim alleging that the misdiagnosis and inadequate treatment of a cancerous ulceration on his leg resulted in deformity and permanent injury, medical records alone are insufficient in support of late claim motion. Expert medical evidence was required to show that the alleged inadequate treatment of ulcer was inadequate in the first instance, and that the ulcer was cancerous when examined, and how such failures are linked to the damages suffered.
Court of Claims abused discretion in allowing late claim to be filed in claim alleging medical malpractice where no affidavit by medical expert causally linking birth of brain damaged child to asserted malpractice submitted.
Denial of inmate's motion to file late claim abuse of discretion where medical records furnished established that he suffered from the medical conditions that the Motrin packaging literature advised precluded prescription of the drug, in a claim alleging medical malpractice based upon physician's allegedly improper direction that inmate take Motrin. No medical affidavit needed to be furnished under these circumstances.
Here, even assuming that the statements made in claimant's motion papers are true, he has not established the appearance of merit of his claim for late claim purposes. Only the unsupported assertions of the claimant have been submitted in support of any claim of inadequate medical care. No competent affidavit, by a treating physician or an expert witness whose opinion was based upon the available medical records, has been submitted to support the allegation of malpractice. Likewise, no medical records from which some misfeasance might be gleaned by a layperson without the benefit of expert guidance has been submitted.
"Facts stated in a motion for leave to file a late claim against the State are deemed true for purposes of motion, when not denied or contradicted in opposing affidavits...(citation omitted)." Sessa v State of New York, 88 Misc 2d 454, 458 (Ct Cl 1976), affd 63 AD2d 334 (3d Dept 1978), affd 47 NY2d 976 (1979).
Based on the foregoing, and after having carefully considered the relevant statutory factors - especially the appearance of merit - the Court hereby exercises its discretion and finds that on balance the factors weigh against claimant, thus claimant's motion for permission to serve and file a late claim is hereby denied.
May 16, 2019
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims