Opinion
# 2016-041-033 Claim No. 123810 Motion No. M-88325
06-07-2016
REGINALD TRAMMELL, 09-A-3936 v. THE STATE OF NEW YORK
REGINALD TRAMMELL Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Michael T. Krenrich, Esq. Assistant Attorney General
Synopsis
Defendant's motion to dismiss claim is granted in part and denied in part where Court lacks subject matter jurisdiction over cause of action challenging administrative determination to place inmate/claimant in involuntary protective custody, where cause of action alleging medical negligence was served more than ninety days after accrual and where cause of action alleging wrongful confinement was served within ninety days of termination of confinement and is not untimely.
Case information
| UID: | 2016-041-033 |
| Claimant(s): | REGINALD TRAMMELL, 09-A-3936 |
| Claimant short name: | TRAMMELL |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123810 |
| Motion number(s): | M-88325 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | REGINALD TRAMMELL Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Michael T. Krenrich, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 7, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves to dismiss the claim because the Court lacks jurisdiction over the "First And Second Cause Of Action" and the "Fourth Cause Of Action" and, additionally, because the "Third Cause Of Action" fails to state a specific date on which the cause of action arose and, alternatively, was not served within ninety days of accrual of the cause of action. Claimant opposes the defendant's motion.
Defendant asserts that the Court lacks subject matter jurisdiction over the claimant's "First And Second Cause Of Action" because it seeks to review the administrative determination of the Department of Corrections and Community Supervision (DOCCS) to place claimant in Involuntary Protective Custody rather than in "A.P.P.U." as requested by claimant. Claimant alleges that his placement in "A.P.P.U." is necessary because he has allegedly cooperated with DOCCS in investigations of fellow inmates.
The jurisdiction of the Court of Claims is invoked where money damages are the essential object of the claim, unlike an instance where the principal claim is equitable in nature (such as to review action or inaction by a state agency), with monetary relief being incidental to the principal claim (see Harvard Fin. Servs. v State of New York, 266 AD2d 685, 685 [3d Dept 1999]; Matter of Gross v Perales, 72 NY2d 231, 236 [1988]).
In City of New York v State of New York (46 AD3d 1168, 1169-1170 [3d Dept 2007], lv denied 10 NY3d 705 [2008]), the court explains that:
"Two inquiries must be made to determine if the Court of Claims has subject matter jurisdiction. As that court has 'no jurisdiction to grant strictly equitable relief' (Psaty v Duryea, 306 NY 413, 416 [1954]), but may grant incidental equitable relief so long as the primary claim seeks to recover money damages in appropriation, contract or tort cases (see Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 671 [1997]), 'the threshold question is "[w]hether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim"' (Madura v State of New York, 12 AD3d 759, 760 [2004], lv denied 4 NY3d 704 [2005], quoting Matter of Gross v Perales, 72 NY2d 231, 236 [1988]). The second inquiry, regardless of how a claimant categorizes a claim, is whether the claim would require review of an administrative agency's determination--which the Court of Claims has no subject matter jurisdiction to entertain (see Hoffman v State of New York, 42 AD3d 641, 642 [2007]), as review of such determinations are properly brought only in Supreme Court in a CPLR article 78 proceeding (see Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757 [1991])."
Claimant challenges the administrative determination of DOCCS to place claimant in Involuntary Protective Custody rather than in "A.P.P.U." as requested by claimant. The essential object of the cause of action is not money damages but rather placement in the administrative protective program desired by claimant. The Court lacks jurisdiction to review the administrative determination of DOCCS and the appropriate forum for such a challenge is Supreme Court (see Matter of Jones v Fischer, 126 AD3d 1217 [3d Dept 2015]).
Claimant's "First And Second Cause Of Action" is dismissed.
Claimant's "Third Cause Of Action" alleges medical negligence based upon defendant's failure to timely diagnose claimant's "ciatic nerve injury [sic]." Contrary to defendant's contention that the "claim fails to particularize the date of accrual for such cause of action," the claim specifically alleges that the defendant's failure to diagnose claimant's "ciatic nerve injury" occurred "In Early, 2012."
Court of Claims Act 10 (3) requires that a claim seeking recovery for injuries caused by the negligence of the State be served upon the Attorney General within ninety days after accrual of the claim.
Courts have consistently held that "[a]s a condition of the State's limited waiver of sovereign immunity, those requirements [timely filing and service] are strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim" (Welch v State of New York, 286 AD2d 496, 497-498 [2d Dept 2001]; see Robinson v State of New York, 38 AD3d 1030 [3d Dept 2007]; Pizarro v State of New York, 19 AD3d 891, 892 [3d Dept 2005], lv denied 5 NY3d 717 [2005]).
The claim was served on defendant on January 15, 2014, substantially more than ninety days after accrual. Claimant, in opposing defendant's motion to dismiss, admits that his medical negligence cause of action accrued in "Feb, 2012" but argues that the cause of action is timely pursuant to "The Continual Treatment Doctrine."
Goldsmith v Howmedica, Inc. (67 NY2d 120, 122 [1986]) explains that:
"The general rule is that an action [for malpractice] accrues and the Statute of Limitations begins to run at the time of the commission of the alleged malpractice . . . We have, to date, recognized but two exceptions. First, in a case where the doctor continues to treat the plaintiff after the act of malpractice, the Statute of Limitations is tolled until after the plaintiff's last treatment for the same injury or illness."
Schwelnus v Urological Associates of L.I., P.C., (94 AD3d 971, 973 [2d Dept 2012]), states that a failure to diagnose a condition that prevents treatment of the condition altogether does not trigger the continuous treatment doctrine toll:
"The continuous treatment doctrine tolls the statute of limitations for a medical malpractice action when, inter alia, the plaintiff demonstrates that he or she continued to seek, and in fact obtained from the defendant physician during the relevant period, an actual course of treatment, denoted by affirmative and ongoing conduct by the physician such as surgery, therapy, or the prescription of medications (see Gomez v Katz, 61 AD3d 108 , 111-112 [2009]). Continuing efforts to arrive at a diagnosis fall short of a course of treatment, as does a physician's failure to properly diagnose a condition that prevents treatment altogether (id. at 112). In addition, the course of treatment provided by the physician must be continuous (id.), and must be for the same conditions or complaints underlying the plaintiff's medical malpractice claim (see Nykorchuck v Henriques, 78 NY2d 255 [1991]; Borgia v City of New York, 12 NY2d 151 [1962]).
Here, the plaintiff alleged that Musto departed from good and accepted standards of medical practice by failing to read the entire pathology report on September 15, 2004, and that this failure resulted in Musto not diagnosing the plaintiff's prostate cancer and not providing or suggesting any treatment for the plaintiff's prostate cancer. Musto's nondiagnosis and resultant nontreatment cannot be considered a course of treatment."
Claimant's medical negligence cause of action alleges a failure to timely diagnose and treat claimant's condition ("nondiagnosis and resultant nontreatment cannot be considered a course of treatment" Schwelnus, 94 AD3d at 973) and the cause of action is untimely, as alleged in defendant's "FIFTH DEFENSE."
The claim's medical negligence cause of action is dismissed.
The claimant's "Fourth Cause Of Action" alleges wrongful excessive confinement as a result of DOCCS allegedly miscalculating claimant's release from confinement date after a series of overlapping disciplinary hearing determinations involving claimant were issued.
To establish that he was wrongfully confined, claimant must prove the following elements "(1) the defendant intended to confine him, (2) the [claimant] was conscious of the confinement, (3) the [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged" (Broughton v State of New York, 37 NY2d 451, 456 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]; Krzyzak v Schaefer, 52 AD3d 979 [3d Dept 2008]).
The element most often contested in a prison disciplinary wrongful confinement claim is whether claimant can show that the confinement was not "otherwise privileged."
With respect to whether a confinement is privileged, Holmberg v County of Albany (291 AD2d 610, 612 [3d Dept 2002], lv denied 98 NY2d 604 [2002]), instructs that: "Generally, where a facially valid order issued by a court with proper jurisdiction directs confinement, that confinement is privileged . . . and everyone connected with the matter is protected from liability for false imprisonment."
In the context of confinement pursuant to a prison disciplinary proceeding, such confinement is "privileged to the extent that it was under color of law or regulation, specifically in accordance with [inmate misbehavior] regulations" (Gittens v State of New York, 132 Misc 2d 399, 402 [Ct Cl 1986]).
Although the record is far from clear, claimant arguably alleges that DOCCS violated its own regulations regarding calculation of inmate disciplinary confinement. In particular, it appears that claimant is alleging that defendant was lawfully required to release him from confinement on June 27, 2013 but did not do so until December 27, 2013, and that, accordingly, he "was wrongfully and excessively confined to cell confinement for close to six (#6) months."
Defendant's motion to dismiss the "Fourth Cause Of Action" cause of action is denied.
As set forth above, defendant's motion to dismiss is granted as to the "First And Second Cause Of Action" and the "Third Cause Of Action" and is denied with respect to the "Fourth Cause Of Action."
June 7, 2016
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion, filed March 29, 2016; 2. Affirmation of Michael T. Krenrich, dated March 28, 2016, and annexed exhibits; 3. Affidavit of Reginald Trammell, sworn to April 6, 2016.