New York State Court of Claims

New York State Court of Claims

BUCCHAN/MITCHELL v. THE STATE OF NEW YORK, #2002-009-022, Claim No. 105241, Motion Nos. M-64553, CM-64715


Synopsis


Defendant's motion to dismiss for failure to state a cause of action was denied, and claimant's cross-motion seeking permission to serve and file an amended claim for both the individual calkm and derivative claim was granted.

Case Information

UID:
2002-009-022
Claimant(s):
RAHIM BUCCHAN, an Infant under the age of 14 years, by his Mother and Natural Guardian, DIANNE MITCHELL, and DIANNE MITCHELL, Individually The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Claimant short name:
BUCCHAN/MITCHELL
Footnote (claimant name) :

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

Third-party defendant(s):

Claim number(s):
105241
Motion number(s):
M-64553
Cross-motion number(s):
CM-64715
Judge:
NICHOLAS V. MIDEY, JR.
Claimant's attorney:
MICHAEL A. RASKIN & ASSOCIATES
BY: Godosky & Gentile, P.C.
David M. Godosky, Esq.,Of Counsel.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Heather R. Rubinstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
May 22, 2002
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought a motion (M-64553) to dismiss this claim for failure to state a cause of action. Claimant has responded with a cross-motion (CM-64715) seeking leave to serve and file an amended claim, or, in the alternative, for permission to serve and file a late claim pursuant to Court of Claims Act, § 10(6).

The following papers were considered by the Court in connection with these motions:
Notice of Motion, Affirmation of Heather R. Rubinstein, Esq. (M-64553) 1,2

Notice of Cross-Motion, Affirmation of David M. Godosky, Esq., Affidavit of Dianne Mitchell, with Exhibits (CM-64715) 3,4,5


Affirmation in Opposition 6


Reply Affirmation 7

In the claim filed on November 21, 2001, Dianne Mitchell, as the mother and natural guardian of Rahim Bucchan, seeks damages for injuries allegedly suffered by her infant son in an incident which occurred on October 21, 2001, at Cape Vincent Correctional Facility.

Defendant has brought its motion seeking dismissal of this claim for failure to state a cause of action. Specifically, defendant argues that the claim is vague, in that it does not set forth any details as to how claimant was injured, or in what way the State was negligent.

Although the claim sets forth allegations that the State was negligent in maintaining a locker at the Cape Vincent Correctional Facility, and that it failed to secure, or negligently secured, the locker to the floor or wall, the claim contains no allegations that claimant was injured as a result of this negligence. As a matter of fact, the claim is completely silent as to how claimant was injured, or how the State's negligence caused or contributed to claimant's injuries. Without any such allegations of negligence, the claim is subject to dismissal for failure to state a cause of action.

However, perhaps recognizing this defect in the claim, claimant served and filed an amended claim, in addition to the cross-motion brought in response to defendant's motion. The amended claim (see Exhibit B to Items 3,4,5) contains specific allegations of negligence, the date, time and location of the accident, and the manner in which claimant was injured. This amended claim was filed with the Clerk of the Court of Claims on February 15, 2002.

In the cross-motion, claimant seeks leave to serve and file a late claim, or in the alternative, for judicial approval of the amended claim. Rather than considering claimant's application as one for late claim relief with respect to her son's injuries, it is this Court's opinion that the proper relief, in the interests of justice and judicial economy, is in granting permission for claimant to proceed with the amended claim. It does not appear that there will be any prejudice whatsoever to the State in allowing the amended claim. Specifically, even though the original claim was defective in content, it was timely served and filed, thereby providing the State with timely notice that an incident involving this infant had occurred at the correctional facility. Furthermore, as set forth in the motion papers, the infant did receive medical treatment at the facility, and the State has had access to these medical records.

Additionally, the Court notes that Rahim Bucchan is an infant, and therefore under the legal disability of infancy. Pursuant to the Court of Claims Act, § 10(5), a claim may be presented against the State within two years after the infant attains majority, without permission of the Court.

Although the caption of the original claim indicated that Dianne Mitchell, mother of Rahim Bucchan, was also asserting an individual claim for damages, the Court notes that the original claim contained no such allegations. However, an individual claim of Dianne Mitchell, derivative in nature, has been asserted in the amended claim. This individual claim, since it was not included in the original claim, was not served or filed within 90 days after accrual of the cause of action, as required by Court of Claims Act, § 10(3), and therefore this derivative claim is jurisdictionally defective.

Claimant's application for late claim relief pursuant to Court of Claims Act, § 10(6) must therefore be considered with regard to this individual claim of Dianne Mitchell. Although claimant has offered no explanation as to why her derivative cause of action was not asserted in the original claim, it is equally clear that the defendant will not suffer any substantial prejudice in defending this claim, since it must provide a defense to the claim of her infant son asserted in the amended claim authorized herein. The facts and circumstances surrounding the individual claim of her son, which the State is obligated to defend, provide the basis of this derivative claim. Furthermore, since the original claim was timely served and filed, the State was provided with timely notice and an opportunity to investigate the facts and circumstances of the incident in which claimant's son was injured. Additionally, this cause of action has been asserted approximately four months after the date of the incident, further indication that there would be no prejudice whatsoever to the State in defending this derivative claim.

Upon weighing and considering all of the factors set forth in Court of Claims Act, § 10(6), it is therefore the opinion of this Court that claimant's application for late claim relief on her derivative cause of action should be granted.

Since this derivative claim has already been asserted in the amended claim which was filed on February 15, 2002, and in the interest of judicial economy, this Court finds that there is no need for claimant to serve and file a new, separate claim for her derivative cause of action.

Accordingly, it is

ORDERED, that Motion No. M-64553, seeking dismissal of Claim No. 105241, is hereby DENIED; and it is further

ORDERED, that Cross-Motion No. CM-64715 is hereby GRANTED, to the extent that permission to amend said claim with regard to the individual claim of infant Rahim Bucchan, asserted by his mother and natural guardian, Dianne Mitchell, is hereby GRANTED; and that claimant's application seeking permission to serve and file a late claim seeking damages on the derivative claim of Dianne Mitchell is also hereby GRANTED, to the extent that claimant is hereby given permission to amend existing Claim No. 105241 to assert such cause of action, as set forth in the amended claim filed on February 15, 2002; and it is further

ORDERED, that defendant shall have 40 days from the date of filing of this decision and order to serve and file its amended answer to amended Claim No. 105241, as filed on February 15, 2002.


May 22, 2002
Syracuse, New York

HON. NICHOLAS V. MIDEY, JR.
Judge of the Court of Claims