New York State Court of Claims

New York State Court of Claims

TORTORICI v. THE STATE OF NEW YORK, #2002-019-531, Claim No. 104703, Motion No. M-64851


Synopsis


Claimants motion for permission to file a late claim relating to conscious pain and suffering cause of action sounding in medical malpractice is denied.

Case Information

UID:
2002-019-531
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-64851
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
KOOB & MAGOOLAGHANBY: Alexander A. Reinert, 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:
May 15, 2002
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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 relief.


The Court has considered the following papers in connection with this motion:
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, 2002.
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, 2002.
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 claims.[1] (Tortorici v State of New York, 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.


I. Substitution

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,



Claimant,


v


The State of New York,


Defendant.

_____________________________________



II. Decedent's Conscious Pain & Suffering Cause of Action sounding in Negligent Supervision

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....

(Stipulation).


Based upon said Stipulation, Claimant's second request for relief is denied as moot.[2]


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 [6]). 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 period.[3] 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.[4]

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.[5] (Gray v State of New York, 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 foregoing.

May 15, 2002
Binghamton, New York
HON. FERRIS D. LEBOUS
Judge of the Court of Claims




[1]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 fees.
[2]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.
[3]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.
[4]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, ¶ 8).
[5]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 was timely.