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
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
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.