New York State Court of Claims

New York State Court of Claims

TORTORICI v. THE STATE OF NEW YORK, #2001-019-580, Claim No. 104703, Motion Nos. M-64067, CM-64227


Synopsis


State's motion to dismiss wrongful death claim is denied, but granted with respect to decedent's conscious pain and suffering and parent's derivative claim. Claimants' cross motion for leave to file a late claim relative to decedent's conscious pain and suffering and parent's derivative causes of action is denied.

Case Information

UID:
2001-019-580
Claimant(s):
ROBERT EMANUEL TORTORICI, Individually and as Administrator of the Estate of Ralph Joseph Tortorici, Deceased, and BERNADETTE DiPACE
Claimant short name:
TORTORICI
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104703
Motion number(s):
M-64067
Cross-motion number(s):
CM-64227
Judge:
FERRIS D. LEBOUS
Claimant's attorney:
KOOB & MAGOOLAGHANBY: Joan Magoolaghan, Esq., of counsel
Defendant's attorney:

HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Carol A. Cocchiola, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
December 21, 2001
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The State of New York moves for an order of dismissal pursuant to CPLR 3211 (a) (2) and (8) alleging a lack of personal and subject matter jurisdiction. Claimants cross-move for permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6) with respect to a claim for conscious pain and suffering of the decedent, Ralph Joseph Tortorici, as well as a derivative claim by his parents.


The Court has considered the following papers in connection with this motion:
  1. Claim, filed August 9, 2001.
  2. Notice of Motion No. M-64067, dated September 12, 2001, and filed September 14, 2001.
  3. Affirmation of Carol A. Cocchiola, AAG, in support of motion, dated September 12, 2001.
  4. Notice of Cross-Motion No. CM-64227, dated October 23, 2001, and filed October 29, 2001.
  5. Affirmation of Joan Magoolaghan, Esq., in support of cross-motion and in opposition to motion, dated October 23, 2001, with attached exhibits.
  6. Affirmation of Carol A. Cocchiola, AAG, in opposition to cross-motion and in support of motion, dated October 30, 2001, and filed November 1, 2001.
It is undisputed that Ralph Joseph Tortorici died after hanging himself with a bed sheet in his cell while incarcerated at Sullivan Correctional Facility on August 10, 1999.[1] Almost two years later, on August 2, 2001, Limited Letters of Administration (hereinafter "Letters") were granted to Robert Emanuel Tortorici. Claimants Robert Emanuel Tortorici and Bernadette DiPace are the natural parents of the decedent, Ralph Joseph Tortorici, who was 31 years old on the date of his death.[2] This Claim was personally served on the Attorney General's office on August 6, 2001 and filed in the Office of the Clerk on August 9, 2001.


This Claim asserts causes of action for wrongful death, decedent's conscious pain and suffering, and a derivative claim by his parents. Claimants' primary allegation is that the State provided inadequate psychiatric care to decedent, as well as negligent supervision. The Claim also seeks damages for violations of the New York State Constitution (Article 1, sections 1, 5, and 11); the United States Constitution (1st, 5th, 8th, and 14th Amendments); derivative claims by the parents alleging a loss of their son's association, relationship and support; punitive damages; and attorney's fees.


I. State's Motion to Dismiss

The State initially moved to dismiss the entire claim including the wrongful death cause of action, but now concedes that the wrongful death claim is timely.[3] As such, the Court need only examine the merits of the State's motion relative to decedent's conscious pain and suffering claim and the parent's derivative claims.


Claimants argue that the governing statute is CCA 10 (2) which mandates the filing and service of a wrongful death claim within ninety days after the appointment of an executor or administrator, rather than 10 (3) which requires that personal injury claims be filed and served within ninety days after the accrual of the claim. Quite simply, Claimants are mistaken on this issue. Although CCA 10 (2) governs wrongful death claims, it does not apply to a survival action to recover for decedent's conscious pain and suffering. (Pelnick v State of New York, 171 AD2d 734, 735; Barrett v State of New York, 161 AD2d 61, 64, affd 78 NY2d 1111).[4] Rather, both the conscious pain and suffering and derivative claims are governed by CCA 10 (3).


Claimants refer to two dates in the proposed claim, namely August 3, 1999 and August 10, 1999. The earlier date, August 3, 1999, is described by Claimants as the date decedent "[w]as released from the psychiatric unit...and confined in a cell in the Intermediate Care Program housing unit at Sullivan Correctional Facility without appropriate psychiatric care or custodial care." (Proposed Claim, ¶ 8). The latter date, August 10, 1999, is the date of decedent's death. It is unclear whether Claimants are relying on August 3, 1999 or August 10, 1999 as the date of accrual so the Court has considered both dates. It is undisputed that this Claim was served and filed on August 6 and 9, 2001, respectively, which is well after ninety days from either accrual date and is thus untimely relative to those causes of action.[5] Claimants concede the untimeliness of their Claim with respect to these two causes of action and have cross-moved for permission to file a late claim relative thereto. Accordingly, the State's motion to dismiss will be granted with respect to the conscious pain and suffering and derivative causes of action, but denied with respect to the wrongful death cause of action.


Furthermore, the Court notes that Claimants have voluntarily withdrawn that portion of this Claim alleging violations of the United States Constitution and seeking punitive damages, although they seek such dismissal "without prejudice". (Affirmation of Joan Magoolaghan, Esq., ¶ 16). This Court does not have jurisdiction to consider punitive damages as they are not permissible in the Court of Claims (Sharapata v Town of Islip, 56 NY2d 332), nor does it have the necessary jurisdiction to consider the Federal Constitutional claims. (Brown v State of New York, 89 NY2d 172, 184). Nor does this Court have the jurisdiction to award attorney's fees. (CCA 27). Consequently, the causes of action based upon violations of the United States Constitution, as well as those seeking punitive damages and attorney's fees are dismissed with prejudice.


II. Cross-Motion for Permission to Late File

A. Jurisdiction

A motion seeking permission to file a late claim must be filed within the statute of limitations period attributable to each underlying cause of action.[6] (CCA 10 [6]).


1). Conscious Pain and Suffering

The portion of this motion asserting decedent's conscious pain and suffering is grounded in both negligence and medical malpractice. More specifically, the allegations pertaining to a general lack of supervision are based in negligence, while the allegations relative to inadequate psychiatric care are better suited to medical malpractice. Negligence claims must be filed within three years from accrual, while medical malpractice claims must be filed within two and one half years from the date of accrual. (CPLR 214 & 214-a). Using either of the possible accrual dates, August 3, 1999 or August 10, 1999, this motion is timely since it was filed on October 29, 2001, which is within both two-and-one-half years and three years from either possible accrual date.[7] (Yoo v New York City Health & Hosps. Corp., 239 AD2d 267).


2). Derivative Claim

The relevant limitations period for a derivative claim is governed by the underlying main claim. (Hertgen v Weintraub, 29 Misc 2d 396, 399). As such, the derivative action would also be grounded in both negligence and medical malpractice and the same analysis stated above is applicable. Thus, this Court also has the jurisdiction to review the merits of the CCA 10 (6) motion in relation to the proposed derivative claim.


B. CCA 10 (6) factors

Turning now to the substance of this cross-motion, the Court will combine the discussion of the statutory factors relative to the analysis of both proposed causes of action, except where otherwise indicated. The factors that the Court must consider in determining a properly framed CCA 10 (6) motion are whether:

1. the delay in filing the claim was excusable,

2. the State had notice of the essential facts constituting the claim,

3. the State had an opportunity to investigate the circumstances underlying the claim,

4. the claim appears to be meritorious,

5. 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

6. the Claimant has any other available remedy.


1. Merit

The issue of whether the proposed claim appears meritorious has been characterized as the most decisive component in determining a motion under CCA 10 (6), since it would be futile to permit a meritless claim to proceed. (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10). In order to establish a meritorious claim, Claimants must establish that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid claim exists. (Id., at 11).


a). Merit of Proposed Conscious Pain and Suffering Cause of Action

This proposed cause of action sounds in both medical malpractice and negligence. It is well-settled that an application for permission to file a late claim motion sounding in medical malpractice generally requires further support in the form of an expert's affidavit of merit.[8] (Schreck v State of New York, 81 AD2d 882; Favicchio v State of New York, 144 Misc 2d 212). For it is only through an affidavit from someone who has the qualifications to allege a deviation from generally accepted medical standards setting forth facts which establish said deviation that the Court may determine the potential merit of the proposed claim. (Favicchio v State of New York, supra, 144 Misc 2d 212; Jolley v State of New York, 106 Misc 2d 550). Here, Claimants have not submitted an expert affidavit, but argue that such an affidavit is not required for two reasons. First, Claimants argue that a certificate of merit does not have to be served until ninety days after medical records are produced pursuant to CPLR 3012-a. However, the expert affidavit required on a motion to late file a medical malpractice claim is a separate requirement from the submission envisioned by CPLR 3012-a. A lack of a certificate of merit is not considered a pleading default (Dye v Leve, 181 AD2d 89), whereas an expert affidavit is an integral part of Claimants' burden in establishing a meritorious medical malpractice claim pursuant to CCA 10 (6). In short, the Court cannot ascertain the factor of merit in the absence of an expert affidavit in dealing with medical malpractice allegations.


Secondly, Claimants argue their submission of the Final Report of the New York State Commission of Correction (hereinafter "Commission") into the death of Mr. Tortorici equates to an expert's affidavit. (Exhibit D to Affirmation of Joan Magoolaghan, Esq.). Claimants rely on the language of the Final Report (hereinafter "Report") that appears to find fault with the psychiatric care provided to decedent. The State argues that the Report does not equate to an affidavit from a qualified physician and also points out that substantive responses to the Report filed by the State Office of Mental Health were not included with the motion papers.


The Court agrees with the State that said Report is not the equivalent to a medical expert's opinion that a deviation from the standard of medical care occurred. The duties of the Commission are broad in nature and include the right to visit, inspect, and appraise facility management. These powers and duties of the Commission are set forth in Correction Law 45 and 46, rather than Correction Law 47 cited by the State. Actually, Correction Law 47 itemizes the duty of the Correction Medical Review Board (hereinafter "CMRB"), one of which is to report to the Commission upon the death of any inmate. (Correction Law 47 [1] [a]). The Commission's Report does state the CMRB made its required report to the Commission and presumably the Report is based in part on the CMRB's findings. The CMRB is composed of both medical and non-medical personnel.[9] The Court was not provided with the CMRB's underlying report nor, as pointed out by the State, the Office of Mental Health's response to the Commission's recommendations.[10] Furthermore, it is unclear whether the Commission and CMRB applies a negligence, medical malpractice or administrative standard of care in reviewing internal incidents and issuing findings. Accordingly, this Court cannot equate the Commission's Report to a medical expert's opinion that there has been a deviation from the standard of medical care. Consequently, in view of Claimants' failure to submit a medical expert's affidavit, this Court finds that Claimants have failed to establish a potentially meritorious claim relative to decedent's conscious pain and suffering based upon medical malpractice.


The Court will next address whether the proposed conscious pain and suffering cause of action sounding in negligence, rather than medical malpractice, appears meritorious. Claimant's proposed claim makes several references to negligent "custodial care" and inadequate "care and protection". (Proposed Claim, ¶ ¶ 8-10). Once again, the only submission in support of such allegations is the Commission's Report. However, in this Court's view, while said Report is insufficient to support the proposed conscious pain and suffering cause of action to the extent it is based on medical malpractice, it is sufficient to support the proposed conscious pain and suffering cause of action based on negligent supervision. Consequently, this Court finds the proposed claim for decedent's conscious pain and suffering arising from the State's alleged negligent supervision does appear meritorious.[11]


b). Merit of Proposed Derivative Cause of Action

The sole allegation in the proposed claim relating to the parents' derivative claim is their allegation they "[h]ave been deprived of the future benefits of their parent to son association, relation and support." (Proposed Claim, ¶ 11). The State questions the viability of this cause of action in the first instance or, in the alternative, contends that said allegation is insufficient to support such a cause of action. The Court agrees. In reviewing the viability of this derivative cause of action, a crucial fact is that decedent was the adult child of Claimants being 31 years old at the time of his death and was thus emancipated from his parents. It is well-settled that an adult child has "[n]o legal obligation to provide services and/or monetary support to his or her parents [citation omitted]" (Scalone v Phelps Mem. Hosp. Ctr., 184 AD2d 65, 72), and vice versa, that the parents' duty of support ends when the child reaches age 21. (Domestic Relations Law 32 [3]; Family Court Act 413). As such, there can be no pecuniary losses in this instance. Regarding any alleged non-pecuniary loss, it is also well-established that there is no cause of action for the loss of a child's companionship (White v City of New York, 37 AD2d 603; Devito v Opatich, 215 AD2d 714, 715); nor any other claim of emotional distress even if the child was a minor. (Tobin v Grossman, 24 NY2d 609; Lauver v Cornelius, 85 AD2d 866). Consequently, the Court finds that Claimants do not possess a derivative claim seeking either pecuniary or non-pecuniary damages due to the death of their adult son. In short, Claimants have failed to establish that their proposed derivative causes of action appear meritorious.


2. Remaining Factors

The next factor is whether Claimants are able to demonstrate an excuse for their delay in filing the claim. Claimants fail to offer any excuse for their rather sizeable two-year delay. The State contends that the lack of a reasonable excuse in light of such a long delay should be dispositive of this motion. (Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654). However, the failure to offer an excusable delay is not usually viewed as dispositive of a motion for permission to file a late claim, but rather merely one factor to be considered. (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979, 981). While Claimants have failed to offer any excuse, this Court finds that it is only one factor in this analysis and is not dispositive of this motion as a whole.


Notice of the essential facts, opportunity to investigate and lack of substantial prejudice comprise the next three factors and may be considered together since they involve analogous considerations. The State concedes that it had notice of the essential facts and an opportunity to investigate, while speculating that it may suffer substantial prejudice due to the two-year delay in filing this claim. Even without such concessions and speculation the Court would have found such notice and opportunity based upon the incident itself and the subsequent investigation. Obviously, a suicide within a correctional facility generates immediate internal investigation which would put the State on notice of these essential facts and provide an opportunity to investigate within the statutory ninety day period. (Matter of Santana v New York State Thruway Auth., supra, 92 Misc 2d 1). This Court finds that the three factors of notice, opportunity to investigate and substantial prejudice all weigh in Claimants' favor.


The last factor is the availability of an alternate remedy. Neither party addresses this factor. Theoretically, Claimants could file an action in Supreme Court against the individual physicians concerning the medical malpractice allegations. However, if those physicians are State employees, presumably so but not entirely clear from the papers, the State would ultimately be responsible for defending or indemnifying these physicians. (Ferlito v State of New York, Ct Cl., August 12, 1998, Lane, J., Motion No. M-57395). Accordingly, the Court finds that this factor also weighs in Claimants' favor.


Accordingly, upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the Court finds the following:


a) Claimants' motion for permission to late file a claim for decedent's conscious pain and suffering sounding in medical malpractice is denied without prejudice to reapply upon proper papers, since the Court finds that two of the six factors, including the all important factor of merit, weigh against Claimants;


b) Claimants' motion for permission to late file a claim for decedent's conscious pain and suffering sounding in negligent supervision is granted, since the Court finds that five of the six factors, including the all important factor of merit, weigh in Claimants' favor;


c) Claimants' motion for permission to late file derivative claims by decedent's parents is denied, since the Court finds that two of the six factors, including the all important factor of merit, weigh against Claimants; and in view of the foregoing,


IT IS ORDERED that Claimants' cross-motion for permission to late file, Motion No. CM-64227, is DENIED IN PART and GRANTED IN PART in accordance with the foregoing. The new claim should include only the cause of action for decedent's conscious pain and suffering sounding in negligent supervision. Claimant shall file a claim and serve a copy of the claim upon the attorney general within sixty (60) days from the date of filing of this Decision and Order in the Office of the Clerk. The service and filing of the claim shall be in conformity with all applicable statutes and rules of the Court, and


IT IS FURTHER ORDERED that the portion of the State's motion to dismiss, Motion No. M-64067 is DENIED IN PART and GRANTED IN PART in accordance with the foregoing.


The Court will schedule a preliminary conference to set up a discovery schedule on the wrongful death cause of action and the negligent supervision causes of action remaining in Claim No. 104703.


December 21, 2001
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims



[1]The Claim refers to the date of death as August 9, 1999, while the Certificate of Death recites August 10, 1999. The Court will use the date listed in the Certificate of Death. (Exhibit A to Affirmation of Joan Magoolaghan, Esq.).
[2]The Certificate of Death lists decedent's date of birth as January 27, 1968. (Exhibit A to Affirmation of Joan Magoolaghan, Esq.).
[3]The State moved against the wrongful death action in the first instance because of Claimants' failure to allege the date of the appointment of the executor or administrator in the Claim, thus leaving the State to speculate about the issue of timeliness.
[4]To the extent that Sheinbaum v State of New York, 101 Misc 2d 250, cited by Claimants is to the contrary, it is no longer followed.
[5]Claimants now concede that no notice of intention was ever served, despite statements to the contrary in the Claim.
[6]Additionally, the State also raises the issue that CCA 10 (6) requires the attachment of a proposed claim which Claimants failed to do. The State, however, did proceed to argue the motion on the merits. Moreover, the State failed to demonstrate any prejudice from the Court doing the same. As such, the Court will treat the pre-existing, though untimely, claim as the proposed claim relative to this motion. (Syndicate Bldg. Corp. v City Univ. of N.Y., 151 Misc2d 492, 495 n 2).
[7]Using the possible accrual date of August 3, 1999, a 2 ½ year period would expire on February 3, 2002, while a 3 year period would end on August 3, 2002. Using the alternate, and more likely date, of August 10, 1999, a 2 ½ year period would expire on February 10, 2002, while a 3 year period would end on August 10, 2002.
[8]This case does not fall within the narrow exception of cases in which an expert affidavit is not required or other submissions suffice. (Matter of Caracci v State of New York, 178 AD2d 876 [reports of radiologist found sufficient]).
[9]The Commission is composed of three persons. (Correction Law 41). The CMRB is comprised of six persons: one must be a licensed physician; one must be a licensed physician and a licensed forensic pathologist; another a licensed physician and a certified forensic psychiatrist; another an attorney; and two members appointed at large. (Correction Law 43).
[10]According to the Commission's Report, the Office of Mental Health was provided an opportunity to respond to the Commission's recommendations contained in the Final Report. (Exhibit D to Affirmation of Magoolaghan, pp 4-5).
[11]The proposed claim uses the phrase "during the period of [decedent's] incarceration" which could be construed as an attempt to include the entire period of imprisonment - the dates of which are not stated. (Proposed Claim, ¶ 12). The only specific accrual dates mentioned in the proposed claim are the previously mentioned dates of August 3, 1999 and August 10, 1999. If Claimant is attempting to include any period of time prior thereto such may well have statute of limitations implications, but the Court will not address that issue here since it is unclear whether Claimants seek such relief.