New York State Court of Claims

New York State Court of Claims

HECKSTALL v. THE STATE OF NEW YORK, #2003-013-028, , Motion No. M-66939


Synopsis


Motion for permission to file a late claim pursuant to Court of Claims Act §10(6) is reserved pending determination of whether or not the transport bus in which inmate was a passenger was a "police vehicle" pursuant to Vehicle and Traffic Law §132-a which was engaged in "emergency operation" pursuant to Vehicle and Traffic Law §114-b.

Case Information

UID:
2003-013-028
Claimant(s):
TIMOTHY HECKSTALL and BARBARA HECKSTALL
Claimant short name:
HECKSTALL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-66939
Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant's attorney:
LIPSITZ, GREEN FAHRINGER, ROLL, SALISBURY &
CAMBRIA, LLP
BY: GREGORY P. KRULL, ESQ.
Defendant's attorney:
F. ROBERT MICHEL, ESQ.
Third-party defendant's attorney:

Signature date:
November 19, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision



On August 20, 2003, the following papers were read on Claimants' motion for permission to file a late claim pursuant to Court of Claims Act §10(6):
1. Claimants' Notice of Motion, Supporting Affidavit and Exhibits Annexed

2. Defendant's Affirmation in Opposition with Exhibit Annexed

3. Claimants' Reply Affirmation with Exhibit Annexed

4. Defendant's Reply Affirmation

This is Claimants'[1] motion for permission to file a late claim. The precipitating event herein was a motor vehicle accident which occurred on September 20, 2001, when Claimant was being transported from the Sullivan County Family Court back to the Livingston Correctional Facility in a bus allegedly leased to the Defendant's Department of Correctional Services (DOCS). This was a two-vehicle accident, and Claimant was purportedly caused to sustain serious injuries as a result.

A complaint was filed in Supreme Court, Erie County, on or about February 11, 2003, against the drivers of the two vehicles and the registrants (owners) of the two vehicles, as those names appeared on the police accident report, and it is contended that nowhere on said report does it indicate that the drivers or the vehicles themselves were related to the State of New York. Thus, the complaint in Supreme Court named one Anthony Sindoni as a defendant, and since Anthony Sindoni was a correction officer employed by the Defendant, he could not be sued in Supreme Court (Correction Law §24), and the parties thereto stipulated the discontinuance of that action against Mr. Sindoni (Exhibit C to the moving papers).

That of course has led to the instant proceeding, Claimant's motion for permission to file a late claim against the State of New York, relating to the accident in question occurring on September 20, 2001. Claimant properly attaches a verified proposed claim, and I note that this motion has been timely commenced before the expiration of the CPLR article 2 statute of limitations period of three years for actions sounding in negligence.

Accordingly, I will now review the six statutory factors enumerated in Court of Claims Act §10(6). As an excuse for the failure to have timely filed this claim, counsel asserts that, because Claimant has remained incarcerated since the time of the accident, communication with him was difficult, and, somewhat incredulously, that the law firm was unaware that the driver was a correction officer or that the vehicle was one leased by the Defendant. That, however, is beside the point, as counsel affirms that his law firm was not even contacted with respect to its representation herein until December 2002, long after expiration of the 90-day filing and service period from accrual of the cause(s) of action. Claimant's excuse as to the first 90 days suggests that he was more concerned with his medical care and treatment. While the moving papers do not provide documentary support for the suggestion that his medical condition precluded his ability to proceed, his excuse might be characterized as ignorance of the law, which does not provide an acceptable excuse. Nonetheless, that is only one of the several factors which I will consider, and a prospective claimant is not required to satisfy all six factors to succeed in a late claim motion (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

In addressing the other factors, Claimant suggests that if the relief were to be granted, there would be no prejudice suffered by the State, and certainly not the substantial prejudice articulated in the statute. Furthermore, given Claimant's status as an inmate under the complete care, custody and control of the Defendant at all times herein, Claimant urges that the State had timely notice of the essential facts underlying the claim, and an unfettered opportunity to have investigated. Furthermore, asserts Claimant, given the indications of the police accident report which he characterizes as suggesting that Correction Officer Sindoni was "primarily responsible for the happening of the accident" because he allegedly attempted to pass a left-turning vehicle and crossed over the double solid yellow lane markings, the alternative remedy of seeking relief in Supreme Court is partial at best, given the purported negligence of Correction Officer Sindoni, which is allegedly attributable to the Defendant. These allegations, suggest Claimant, also provide the appearance of meritoriousness of the underlying claim. Claimant alleges in his affidavit serious injuries, and that those physical injuries include, among other things, a herniated disc at L5-S1.

The Defendant articulately demurs, raising two primary issues. It argues that since the owner of the vehicle in which Claimant was being transported is still a defendant in the Supreme Court action, and since owners under New York State Vehicle and Traffic Law §388 may be held vicariously liable for injuries resulting from the negligent use or operation of its vehicle, regardless of whether CO Sindoni is a party in that action, the alternative remedy in Supreme Court appears to be complete. Claimant recites the denial by the owners/lessors of the bus in their answer in the Supreme Court proceeding of sufficient information to either admit or deny ownership. That, of course, is not a denial per se. Given my ruling below, that issue should be resolved, one way or another, as Defendant has suggested, if Claimant utilizes a notice to admit upon the putative owner/lessor defendants in Supreme Court.

Moreover, Defendant argues that the moving papers are deficient in that there are inadequate factual allegations to establish that Claimant sustained the requisite serious injury as such is defined in Insurance Law article 51. Defendant notes that there are no medical affidavits regarding causation, and in the absence thereof, Claimant cannot establish that he sustained a serious injury as a result of the accident, thereby being unable to demonstrate the meritoriousness of his proposed claim.

In reply, Claimant appends selected portions of Claimant's medical records from DOCS which purportedly reflect a pre-accident program clearance allowing Claimant's full participation in exercise programs. After the accident that clearance was modified to limit certain physical activities, as well as post-accident permanent lower bunk limitations and provision of a back brace, for medical reasons. Claimant appends ambulatory health records starting with the day of the accident, including post-accident provision of muscle relaxants and pain medication, and a report from one Dr. Gerald Coniglio at Groveland Correctional Facility dated November 18, 2002 (albeit more than one year post accident) describing Claimant's complaints stemming from the bus accident and an ensuing history of low back pain, referencing x-rays at L5-S1.

The Defendant references the decision of Hon. Renée F. Minarik in McDowell v State of New York (Ct Cl, May 17, 2002 Motion No. M-64335 - 2002-031-018)[2] denying a motion to file a late claim where a pro se inmate who had undergone shoulder surgery one month prior to the motor vehicle accident and was receiving physical therapy, alleged that a second shoulder surgery some five months later was necessitated by an additional injury sustained in the motor vehicle accident. The claimant was unable to demonstrate any sign of new injury, swelling ,decrease in range of motion, etc., and it was totally unclear if, and to what extent, the second operation was related to the motor vehicle accident. Matter of Edwards v State of New York (119 Misc 2d 355) is not inapposite. In Edwards (supra), a late claim was denied because the claimant had been unable to demonstrate the existence of a serious injury because the only statements about the injury appeared in the proposed claim and the attorney's affirmation, and were merely conclusory allegations which at best paraphrased the statutory definition. As seen below, here there is additional support from Claimant's medical records maintained by the Defendant.

Of course it is clear that, unlike a party who has timely filed a claim, one seeking permission to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious (see, Nyberg v State of New York, 154 Misc 2d 199). The general rule is that a proposed claim will be considered as demonstrating the appearance of meritoriousness if it is not patently groundless, frivolous, or legally defective; and, upon consideration of the entire record, there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11).

I find that it is not necessary for purposes of this application to prove or establish the requisite "serious injury." I find that there is a sufficient basis, solely as to this aspect of the appearance of meritoriousness, for believing that the medical records maintained by the Defendant's Department of Correctional Services reflect the existence of a herniated disc and provide sufficient circumstantial indicia of a marked change in Claimant's physical condition occurring contemporaneously after the accident. I am not unmindful that Claimant is an inmate and obtaining an expert's opinion as to whether a serious injury has been incurred can be problematical.

A disc herniation may constitute a "serious injury" (see, Boehm v Estate of Mack, 255 AD2d 749, 750; Seymour v Roe, 301 AD2d 991, 996; Cacaccio v Martin, 235 AD2d 384). I have always been taken by the drafters' use of the phrase "appearance of meritoriousness," and its implications in considering whether to exercise my discretion. I prefer not to be bound by a line drawn in the sand, and am quite comfortable in allowing, based upon the medical records that have come before me in this case, and this case alone, that a sufficient showing of serious injury has been made to meet the standard of the appearance of meritoriousness.

Nonetheless, there is a significant issue which both parties have overlooked, one which may prove to be dispositive of this motion. The parties are directed to address the effect of Vehicle and Traffic Law Section 1104 with respect to whether the vehicle in which Claimant was riding is an "authorized emergency vehicle," including whether the bus is a "police vehicle" (Vehicle and Traffic Law §132-a) which was involved in an "emergency operation" (Vehicle and Traffic Law §114-b).[3] The resolution of that question might relegate this matter to one where liability may not be imposed unless it is alleged and established that the operator of the vehicle acted with "reckless disregard for the safety of others" (Vehicle and Traffic Law §1104). The resolution of these issues dramatically affects any determination whether the proposed claim has the appearance of meritoriousness.

Accordingly, while the parties have the benefit of my review of various considerations above, decision on this motion is reserved so that the parties may serve and file additional submissions with respect to the unresolved and outstanding issues noted above, to wit, the ownership of the bus, whether the bus was an authorized emergency vehicle, and, if so, whether any of the conduct attributable to the Defendant is sufficient to allegedly meet the standard of recklessness. In accordance with the following schedule, Claimants shall have 45 days from service of a file-stamped copy of this interim order to submit their initial supplemental responses, including any amended proposed claim; the Defendant shall have ten days thereafter to provide opposing papers, and Claimants shall then have five more days to reply. The Clerk is directed to serve this order upon the parties.


November 19, 2003
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims




  1. [1]The claim of Barbara Heckstall is derivative, and for syntactical ease, all references hereinafter to Claimant shall mean Timothy Heckstall.
  2. [2]This and other Court of Claims decisions may be found on the Court of Claims website at www.nyscourtofclaims.state.ny.us.
  3. [3]See generally, Cadiz v State of New York (Ct Cl, April 29, 2002 [Claim No. 98648 - Motion No. M-63510 - No. 2002-013-512], Patti, J).