New York State Court of Claims

New York State Court of Claims

VARIAN v. THE STATE OF NEW YORK, #2001-010-077, Claim No. 102782, Motion Nos. M-63825, CM-63890


Synopsis


Claimant's motion to strike defendant's third and fourth affirmative defense and for leave to file a late claim and defendant's cross-motion to dismiss. Defendant's cross-motion is granted.

Case Information

UID:
2001-010-077
Claimant(s):
MARY VARIAN, as Parent and Legal Guardian of ANTHONY LUGO, MARY VARIAN The Court has, sua sponte, amended the caption to reflect the State of New York as the only proper party defendant.
Claimant short name:
VARIAN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court has, sua sponte, amended the caption to reflect the State of New York as the only proper party defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102782
Motion number(s):
M-63825
Cross-motion number(s):
CM-63890
Judge:
Terry Jane Ruderman
Claimant's attorney:
ROGAN, GUIDA AND ORENSTEINBy: Jeffrey P. Rogan, Esq.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Richard Lombardo, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 10, 2001
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-4 were read and considered by the Court on claimant's motion to strike defendant's third and fourth affirmative defense and for leave to file a late claim and defendant's cross-motion to dismiss:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits........................1

Notice of Cross-Motion, Attorney's Supporting Affirmation and Exhibits.............2

Reply and Opposition to Cross-Motion....................................................................3

Letter of Claimant's Attorney Dated November 13, 2001 and Exhibit....................4

On October 22, 1998, defendant received a Notice of Intention to File a Claim. The Notice of Intention alleged that on July 24, 1998, Antonio Lugo, a resident of Hudson House, a facility operated by the State of New York Office of Mental Retardation and Developmental Disabilities, was assaulted by the personnel at Hudson House (Cross-Motion, Ex. A). The Notice of Intention further alleges that defendant was negligent in its hiring, supervision and maintaining the personnel entrusted to care for and treat Lugo.

On July 21, 2000, Claim No. 102782 was filed with the Court (Motion, Ex. B; Cross-Motion, Ex. C) and then served upon defendant on July 24, 2000 (Cross-Motion, Ex. B). By answer dated September 5, 2000, defendant asserted with specificity the affirmative defense of lack of jurisdiction, i.e., that the claim accrued on July 23, 1998 and the Notice of Intention was not served until October 22, 1998, which is not within 90 days of accrual (Motion, Ex. C; Cross-Motion, Ex. D) and the claim served upon defendant on July 24, 2000 was untimely.

Accordingly, claimant brings this late claim application and defendant cross-moves to dismiss the claim.
Claimant's Late Claim Application
Court of Claims Act § 10(6) requires that the Court consider, among other relevant factors: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the claimant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see, Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979).

Claimant's purported excuse for the delay is her reliance upon the notes of Lugo's treating physician, which stated that Lugo was injured on July 24, 1998, as opposed to July 23, 1998.[1] This mistake of fact is not a valid excuse (see, Purinton v State of New York, 193 Misc 938 [landlord's reliance on tenant's statement as to the date State workers cut tree on landlord's property was not a valid excuse]).

However, the presence or absence of any one factor is not determinative (see, Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, supra). Defendant is not significantly prejudiced; it received the Notice of Intention on the 91st day after the claim's accrual and, as evidenced by the November 6, 1998 letter, a facility investigation of the incident was conducted and local law enforcement officials were notified (Motion Papers, Ex. E). The letter further stated:
[i]t was concluded that these injuries were inflicted solely by a Developmental Aide. It was also determined that another Developmental Aide knew of the injuries to Antonio as she was present at the time of the incident. These two employees have been referred to the LVDDSO Office of Personnel for administrative action. Two other employees were also referred for administrative action for their failure to obtain immediate attention and for falsifying documentation.

Most significantly, claimant has shown the claim's appearance of merit. In addition to the July incident, the November 6, 1998 letter acknowledges claimant's previous claim of abuse on June 27, 1998 and a facility investigation of that incident. Claimant has shown proof of a formal complaint about the staff, prior to the July allegations, and therefore, that the State either knew or should have known of a potential danger posed by its employees. Claimant's submissions are more than unsubstantiated, self-serving statements, without any independent supporting evidence and are sufficient to establish the appearance of merit of the claim, i.e., that the State was aware or should have been aware of its staff's inappropriate conduct and lack of supervision and yet the State failed to take appropriate action (see, Epstein v State of New York, 88 AD2d 967). Also, claimant may not have another available remedy.

Upon consideration of all the relevant factors, the Court GRANTS claimant's motion for leave to file and serve a late claim in the same form as Claim No. 102782,[2] in compliance with the provisions of the Court of Claims Act, within 30 days of receipt of a filed copy of this Decision and Order.

It is noted that the Court's conclusion with regard to the appearance of merit is limited to this Decision and Order; a greater burden of proof rests upon claimant to prevail at trial.
Defendant's Cross-Motion to Dismiss
The requirements of Court of Claims Act §§ 10 and 11 are jurisdictional in nature and require strict compliance (see, Finnerty v New York State Thruway Auth., 75 NY2d 721; Matter of Welch v State of New York, 71 AD2d 494). Accordingly, the claim warrants dismissal pursuant to CPLR 3211(a)(2) and (a)(8) (see, Gatz v State of New York 283 AD2d 607; Hodge v State of New York, 213 AD2d 766).

Defendant's cross-motion is GRANTED.


December 10, 2001
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1] It is also noted that claimant's exhibit E to her motion papers indicates that claimant identified the date of injury as July 22, 1998.
[2] The caption shall be amended as set forth supra,