TORTORICI v. THE STATE OF NEW YORK, #2002-019-531, Claim No. 104703, Motion No.
Claimants motion for permission to file a late claim relating to conscious pain
and suffering cause of action sounding in medical malpractice is denied.
ROBERT EMANUEL TORTORICI, Individually and as Administrator of the Estate of Ralph Joseph Tortorici, Deceased, and BERNADETTE DiPACE
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FERRIS D. LEBOUS
KOOB & MAGOOLAGHANBY: Alexander A. Reinert, Esq., of counsel
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Carol A. Cocchiola, Assistant Attorney General, of counsel
May 15, 2002
See also (multicaptioned
Claimants move for permission to file a late claim pursuant to Court of Claims
Act (hereinafter "CCA") 10 (6) with respect to a claim for the conscious pain
and suffering of the decedent, Ralph Joseph Tortorici, sounding in medical
malpractice, together with additional relief. The State has submitted
responsive papers, but does not substantively object to any of the requested
The Court has considered the following papers in connection with this
1. DECISION AND ORDER, Ct Cl, Lebous, J., Claim No. 104703, Motion Nos. M-64067
& CM-64227, filed January 8, 2002.
2. Notice of Motion No. M-64851, dated March 8, 2002, and filed March 11,
3. Affirmation of Alexander A. Reinert, Esq., in support of motion, dated March
8, 2002, with attached exhibits.
4. Affidavit of Dr. Stuart Grassian, in support of motion, sworn to March 5,
5. Affirmation of Carol A. Cocchiola, AAG, in response to motion, dated and
filed April 1, 2002, with attachment.
6. Stipulation, filed April 8, 2002.
By way of background, this matter relates to the circumstances surrounding the
suicide of Ralph Joseph Tortorici, age 31, during his incarceration at Sullivan
Correctional Facility on August 10, 1999. Claimants personally served the
Attorney General's office with Claim No. 104703 on August 6, 2001 and filed the
same in the Office of the Clerk on August 9, 2001. Claim No. 104703 originally
asserted multiple causes of action, including, but not limited to, wrongful
death, decedent's conscious pain and suffering (based in both negligence and
medical malpractice), and a derivative claim by decedent's parents.
A review of the prior motions in this Claim is necessary in order to place the
pending motion into context. In Motion No. M-64067, the State initially moved
to dismiss this Claim in its entirety, but later withdrew that portion of the
motion related to the wrongful death cause of action. This Court dismissed the
conscious pain and suffering causes of action, based on both negligent
supervision and medical malpractice, as well as the derivative
(Tortorici v State of New
, Ct Cl, January 8, 2002, Lebous, J., Claim No. 104703, Motion No.
M-64067, Cross-Motion No. CM-64227). Accordingly, a wrongful death cause of
action was the sole remaining cause of action in Claim No. 104703.
In Cross-Motion No. CM-64227, Claimants sought 10 (6) relief in relation to the
dismissed conscious pain and suffering causes of action, as well as the
derivative claims. This Court made separate findings relative to the three
proposed causes of action as follows: (1) the late filing motion for the
conscious pain and suffering claim sounding in negligent supervision was
granted; (2) the motion on the conscious pain and suffering claim sounding in
medical malpractice was denied without prejudice; and (3) the motion relative to
the proposed derivative causes of action was denied with prejudice.
(Tortorici v State of New York, supra, Cross-Motion No. CM-64227,
p13). In other words, Claimants were permitted to file and serve a second claim
containing only the conscious pain and suffering cause of action sounding in
negligent supervision and to file and serve a new motion for 10 (6) relief on
the conscious pain and suffering cause of action sounding in medical malpractice
upon proper papers. Thereafter, Claimants attempted to file and serve that
second claim, although they improperly entitled it as a "First Amended Claim"
and made various errors relating to the filing and service thereof. (See
infra, Point II).
The primary focus of this current motion is Claimant's second 10 (6) motion
relating to the proposed conscious pain and suffering cause of action sounding
in medical malpractice, although a summary of all the requested relief in this
current motion is as follows:
1) an order substituting Bernadette DiPace, as successor Administratrix d.b.n.
of the Estate of Ralph Joseph Tortorici, deceased, as party Claimant in the
place and stead of Robert E. Tortorici, Sr., Administrator of the Estate of
Ralph Joseph Tortorici, deceased;
2) an order accepting for filing a late claim with respect to the negligent
supervision claim made herein by Bernadette DiPace, mother of the deceased and
Administratrix d.b.n. of the estate of the deceased; and
3) permission to late file the conscious pain and suffering cause of action
sounding in medical malpractice.
The Court will discuss each request separately.
On August 2, 2001, Limited Letters of Administration were granted to Claimant's
father, Robert Emanuel Tortorici. Only three months later, on November 22,
2001, Robert Emanuel Tortorici passed away. The Albany County Surrogate's Court
granted Limited Letters of Administration De Bonis Non to Bernadette DiPace.
(Exhibits B & D to Affirmation of Alexander A. Reinert, Esq.). Ms. DiPace
seeks to be substituted as party Claimant as successor Administrator. The State
does not oppose the substitution, other than to object to the inclusion of any
individual claim by Ms. DiPace in accordance with this Court's prior Decision
and Order which previously denied the parents motion for permission to file late
derivative claims. (Tortorici v State of New York, supra, p 13).
This Court agrees that no individual claims may be included as part of the
substitution in accordance with the prior Decision and Order.
Pursuant to CCA Article 15, the Court directs that Bernadette DiPace shall be
substituted as Claimant solely in her capacity as the Administratrix of the
Estate of Ralph Joseph Tortorici, deceased, in Claim No. 104703 and related
claims and motions before this Court and the new caption shall read as follows:
BERNADETTE DiPACE, as Administratrix of
the Estate of Ralph Joseph Tortorici, Deceased,
The State of New York,
II. Decedent's Conscious Pain & Suffering Cause of Action sounding in
Claimants filed and served a "First Amended Claim" in an attempt to comply with
this Court's prior Decision and Order granting 10 (6) relief for decedent's
conscious pain and suffering cause of action sounding in negligent supervision,
but made various errors in trying to comply with this Court's prior Decision and
Order and all applicable rules and regulations. Thus, as part of this motion,
Claimant requested an order accepting this "First Amended Claim" for filing.
However, this request has now been obviated by a Stipulation entered into
between the parties and filed with the Clerk of the Court on April 8, 2002,
which states, in pertinent part, as follows:
[i]t is hereby stipulated and agreed, by and between the undersigned, the
attorneys of record for all parties to the above-entitled claim, that claimants
will withdraw the First Amended Claim, and within 30 days of the execution of
this Stipulation, substitute therefore [sic] a claim in conformity with
the Court's Decision and Order, and serve and file said claim pursuant to the
applicable rules and statutes of the Court of Claims....
Based upon said Stipulation, Claimant's second request for relief is denied as
III. Motion for Permission to Late File
The Court now turns to the remaining request for relief in this motion, namely
Claimant's request for permission to file a late claim pursuant to CCA 10 (6)
for decedent's conscious pain and suffering cause of action sounding in medical
malpractice. Claimants' first attempt at relief on this matter was denied
without prejudice due to the absence of a supporting expert's affidavit on the
issue of merit. (Tortorici v State of New York, supra, p 13).
This is Claimant's second attempt to obtain such relief. Before this Court may
review the six enumerated factors set forth in CCA 10 (6), however, it must
first ascertain whether this motion was brought before the expiration of the
statute of limitations period pursuant to CPLR Article 2.
It is well-settled that a motion seeking permission to file a late claim must
be filed within the statute of limitations period attributable to the underlying
cause of action. (CCA 10 ). The proposed cause of action for decedent's
conscious pain and suffering sounding in medical malpractice is governed by a 2
½ year statute of limitations from the date of accrual. (CPLR 214-a).
Here, the alleged dates of accrual span from August 3, 1999 through August 10,
1999. Accordingly, the 2 ½ year period would expire, at the earliest, on
February 3, 2002, and, at the latest, on February 10, 2002. As such, this
motion had to be filed, at the latest, by February 10, 2002. It was not.
Rather, this current motion was filed on March 11, 2002 which is beyond the
expiration of the underlying limitations
Claimant candidly concedes the
untimeliness of this proposed claim, but argues that she is not barred from
proceeding due to the applicability of CPLR 205 (a), as well as focusing on a
portion of this Court's prior Decision and Order. (Affirmation of Alexander A.
Reinert, Esq., ¶ 12). Surprisingly, the State has not addressed these
issues in its opposing papers.
Claimant's first argument rests on the theory that the six month extension
authorized by CPLR 205 (a) is applicable to the case at bar. It is well
settled, however, that the statutory time constraint on commencing a claim in
the Court of Claims is not a statute of limitations but more akin to conditions
precedent and are to be strictly construed. Thus, the extension afforded by
CPLR 205 (a) is not available here to make this proposed claim timely.
(Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp., 93 NY2d 375).
Claimant's next argument relies on this Court's prior Decision and Order by
asserting that "[a]s the Court noted in its Decision and Order of January 8,
2002, however, when the medical malpractice claim originally was filed, it was
brought within the applicable statute of limitations. See Decision and Order at
6." (Affirmation of Alexander A. Reinert, Esq., ¶ 12). It appears that
Claimant is viewing this second motion for 10 (6) relief as a mere continuation
of their first motion for 10 (6) relief when, in fact, they are two separate and
distinct motions. This Court's prior comment was made solely in relation to the
motion before it at that time, namely Cross-Motion No. CM-64227. That motion,
however, was "denied without prejudice" which is merely another way of saying
that the denial is not a ruling on the merits and that Claimants are not
prohibited from making a second, but separate, attempt at the same relief. What
goes without saying, however, is that a second attempt, if any, must be made
before the statute of limitations for a like claim would expire under the CPLR.
Stated another way, a subsequent motion for permission to late file must stand
on its own and cannot be saved by a prior unsuccessful motion for the same
relief that was timely.
(Gray v State of
, Ct Cl, March 3, 2000, Ruderman, J., Claim No. 97777, Motion No.
M-60987, Cross-Motion No. CM-61075; Santiago v State of New York
, Ct Cl,
June 17, 1998, Bell, J., Claim No. None, Motion No. M-57356). As such, the
Court finds Claimant's second argument to be without merit.
Consequently, the Court finds that it does not have jurisdiction to hear and
determine this motion as it relates to Claimant's motion seeking permission to
file a late claim for decedent's conscious pain and suffering based upon medical
malpractice because the underlying limitations period has expired. The Court
does not have the discretion to waive this statutory requirement as it is a
mandatory prerequisite to the exercise of jurisdiction. As such, the Court need
not reach a discussion of the enumerated factors set forth in CCA 10 (6). Thus,
Claimant's motion for permission to file a late claim based upon decedent's
conscious pain and suffering sounding in medical malpractice is denied.
Accordingly, in view of the foregoing, IT IS ORDERED that Claimant's Motion No.
M-64851 is GRANTED IN PART and DENIED IN PART in accordance with the
May 15, 2002
HON. FERRIS D. LEBOUS
Judge of the Court of Claims
The Court also dismissed causes of action
alleging violations of the New York State Constitution, the United States
Constitution, as well as those seeking to recover punitive damages and attorneys
The Court will consider at a later time a
request for a joint trial of these two claims, Claim Nos. 104703 & 105977,
as well as jointly conducted discovery.
The Court notes that there was sufficient time
for compliance after the issuance of this Court's prior Decision & Order.
Said Decision & Order was filed on January 8, 2002 was transmitted to
counsel by the Clerk's Office on the same date as filing. As such, Claimants
had almost a month before the expiration of the underlying limitations period
after receipt of this Court's Decision and Order.
The State did not address either the
jurisdictional issues nor any of the statutory factors, indicating merely that
"[t]he State leaves to the Court's discretion the determination as to whether
such papers have been submitted". (Affirmation of Carol A. Cocchiola, AAG,
Otherwise, there would be nothing to prevent a
potential claimant from making unending attempts at 10 (6) relief after the
expiration of the underlying limitations period as long as the original attempt