New York State Court of Claims

New York State Court of Claims

BRATTON v. THE STATE OF NEW YORK, #2003-015-366, Claim No. 107763, Motion Nos. M-67330, CM-67462


Synopsis


Claimant granted partial summary judgment on issue of liability stemming from unlawful imprisonment at state correctional facility rather than drug treatment facility. Placement resulted from DOCS unlawful action in overriding judicially imposed sentence to treatment facility.

Case Information

UID:
2003-015-366
Claimant(s):
LARRY A. BRATTON
Claimant short name:
BRATTON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107763
Motion number(s):
M-67330
Cross-motion number(s):
CM-67462
Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Larry A. Bratton, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Belinda A. Wagner, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 17, 2003
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant's motion for [partial] summary judgment seeking an order determining the State's liability for alleged unlawful imprisonment is granted and a trial on the issue of damages shall be scheduled as the Court's calendar permits. Claimant's request for an order determining the defendant's liability for alleged acts of medical malpractice by persons employed by the Department of Correctional Services (DOCS) is denied. Defendant's cross-motion for summary judgment seeking an order dismissing the instant claim for lack of jurisdiction is granted as to the cause of action for medical malpractice and is denied as to the cause of action for claimant's unlawful confinement. The claim filed on May 19, 2003 seeks to recover damages arising out of claimant's confinement at the Franklin Correctional Facility (Franklin), Malone, New York rather than under parole supervision at the Willard Drug Treatment Campus (Willard), Willard, New York for a period of 90 days followed by release on parole. Specifically, claimant alleges that his Court ordered placement at Willard was part of a plea bargain accepted by the Schenectady County Court contingent upon his plea of guilty to a charge of criminal sale of a controlled substance in the fifth degree. The order of commitment (a copy of which is attached to clamant's motion) signed by the Honorable Guy Tomlinson sentenced claimant to an indeterminate term of imprisonment of 3 ½ to 7 years "replaced by Willard Supervision."

Following entry of his plea claimant was remanded to the Schenectady County jail to await delivery to a DOCS reception center for a period not to exceed 10 days pursuant to CPL § 410.91. He was then transported to DOCS Downstate Reception Center on December 24, 2001 for processing. Unnamed DOCS officials thereafter determined that the claimant had been improperly sentenced by the Court to parole supervision at Willard concluding that his prior conviction of a violent felony offense rendered him ineligible for the Willard program (see letter of Patricia Glynn dated January 2, 2002 and letter of Richard deSimone, associate counsel to DOCS dated January 29, 2002 attached to defendant's Exhibit 1.) The letter by Ms. Glynn was wrongly directed to the Supreme Court, Herkimer County, which had no connection to claimant's plea bargain or sentencing. A second letter by Mr. deSimone dated January 29, 2002 was, however, addressed to Judge Tomlinson and related the Department's view that the claimant had been improperly sentenced to a term of parole supervision and that claimant was, therefore, being transferred to Franklin Correctional Facility to serve the underlying 3 ½ to 7 year indeterminate sentence. Neither letter resulted in the claimant being re-sentenced and claimant was, in fact, transferred to Franklin Correctional Facility on January 3, 2002 to begin serving the underlying sentence of imprisonment.

Claimant, by petition sworn to January 13, 2002, commenced a habeas corpus proceeding pursuant to article 70 of the CPLR in Supreme Court, Franklin County. Judge Feldstein of that Court issued an order to show cause on January 22, 2002 and an amended order to show cause on February 14, 2002. Claimant's (therein petitioner's) affidavit of service was filed with the Franklin County Clerk on February 26, 2002. Upon the named respondent's failure to submit a return to the petition the claimant herein moved for a default judgment. The respondent in the habeas corpus proceeding, through an Assistant Attorney General, thereafter opposed Mr. Bratton's motion for a default judgment and sought leave of Court to submit an answer [sic]. Judge Feldstein's decision, order and judgment filed May 17, 2002 denied the respondent's request and granted claimant's motion ordering, inter alia, that he be placed under the supervision of the State Division of Parole in accordance with the provisions of CPL § 410.91 (1). Claimant was thereafter transferred from the Franklin Correctional Facility to Willard on May 20, 2002 after having been incarcerated at Franklin for more than four months.

Claimant also alleges that while confined at Franklin he was required to undergo medical treatment for tuberculosis which he alleges was both unnecessary and detrimental to his health. In this regard paragraph 8 of the claim alleges the following:
That while Claimant was unlawfully imprisoned at the Franklin Correctional Facility, he was forced to undergo unneeded treatments for tuberculosis (TB) in spite of his having advised state officials that he had already undergone treatment when previously incarcerated at another state correctional facility under a different DIN number (See Exhibit C) and in spite of the awareness of state officials that Claimant suffered from hepatitis and, therefore, the INH treatment for TB would place him at grave risk of injury or death. Moreover, chest x-rays taken of Claimant's chest and lungs at the time were negative for the presence of TB (See Exhibit D). And a later inquiry for Claimant's medical records under his old DIN number confirmed that he had received a full course of treatment as he said that he had (See Exhibit E). Hence, the medication given to the Claimant was harmful and unneeded.
Claimant alleges that the forced administration of TB medication by DOCS personnel constituted medical malpractice further damaging his already damaged liver, causing him great mental distress and violating his civil and constitutional rights. He alleges that he served a notice of intention to file a claim upon the Attorney General on or about May 31, 2002 with regard to this particular cause of action.

Claimant moved for summary judgment on the ground that there are no material issues of fact requiring a trial and that the State's liability can be determined as a matter of law. Claimant's motion is supported by his own affidavit; a copy of a document entitled "Sentence & Commitment Statement of Conviction"; a copy of a commitment dated 12/6/01 signed by Hon. Guy P Tomlinson, Acting Schenectady County Judge; a copy of section 410.91 of the Criminal Procedure Law; a copy of a decision, order and judgment of Hon. S. Peter Feldstein, Acting Supreme Court Justice dated May 16, 2002; a copy of claimant's ambulatory health records and a copy of a document entitled "Medical Problem List"; a copy of a letter dated February 13, 2002 from Tim Joseph to Dr. Lester Wright, DOCS Associate Commissioner for Health Services; a copy of a request for interview or information dated 1/13/02; a copy of a second request for interview or information dated 1/13/02; a copy of a request for radiological examination and report bearing initials and dated 1/10/02 and a case history and record of grievance filed 4/5/02.

The defendant opposed the motion and cross-moved for summary judgment dismissing the claim on three grounds. First, that the decision by DOCS to place claimant at Franklin rather than at Willard was a discretionary act for which the State of New York is entitled to qualified immunity. Second, that claimant's motion must be denied due to the failure to present sufficient facts upon which the Court might ascertain damages. Third, that the Court lacks jurisdiction over the claimant's cause of action sounding in medical malpractice because (i) the claim is not supported by an affidavit or affirmation of a medical expert attesting to the claim's potential merit and (ii) both the notice of intention to file a claim served on May 31, 2002 and the claim served on May 19, 2003 were untimely since neither was served within 90 days of the claim's accrual measured from February 6, 2002, the date the medication allegedly forced upon claimant by DOCS medical personnel was discontinued.

Claimant in his reply affidavit argues that a claim accrues when damages are reasonably ascertainable and that he was unable to determine the actual injury suffered until after he obtained and reviewed his medical records in late April or early May, 2002. Claimant further contends that his ambulatory health records sufficiently demonstrate that he suffered liver damage as a result of the administration of the TB medication and that no expert affidavit is required under these circumstances to support the medical malpractice portion of his claim.

It is not disputed that Judge Tomlinson sentenced claimant to an indeterminate sentence of 3 ½ to 7 years replaced by Willard supervision. Such a sentence is available pursuant to Criminal Procedure Law § 410.91 which authorizes DOCS to retain custody of a criminal defendant for ten days at a reception center and for ninety days at a DOCS drug treatment campus followed by the defendant's release to parole supervision.

Here, despite the facial validity of Judge Tomlinson's commitment claimant was not transferred to Willard at the end of the 10 day processing period but rather was retained in DOCS custody and committed to Franklin Correctional Facility under the portion of the commitment reciting claimant's indeterminate sentence of 3 ½ to 7 years. Claimant promptly sought judicial review of DOCS actions in a habeas corpus proceeding which was decided on May 16, 2002. That proceeding resulted in claimant's belated transfer to Willard on May 20, 2002. In deciding to grant claimant's motion for a default judgment within the context of the habeas corpus proceeding Acting Supreme Court Justice S. Peter Feldstein specifically rejected the State's argument challenging the sentencing court's authority to commute claimant's sentence to parole supervision pursuant to Criminal Procedure Law § 410.91. Judge Feldstein held:
"The Department [of Correctional Services] is bound to implement a commitment regardless of whether the sentence is proper and it is conclusively bound by the content of the commitment papers." Mullen v State, 122 AD2d 300, 302 app den 68 NY2d 609, cert den 408 US 938 (citation omitted). See also, Middleton v State, 54 AD2d 450, aff'd 43 NY2D 678 and People v Konigsberg, 137 AD2d 142, app den 72 NY2d 914, recon den 72 NY2d 1046. The Court finds no basis to conclude that DOCS is legally empowered to conduct it's [sic] own review of a trial court's sentencing order and to simply decline to abide by such portions of the order that DOCS finds to have been imposed in excess of the trial court's authority. It is noted that CPL § 440.40 specifically authorizes a motion by the people, to the trial court, to set aside a sentence upon the ground that it was invalid as a matter of law. If the trial court denies such motion an appeal to an intermediate appellate court may be taken as of right by the people. See CPL § 450.20 (7)."

Since the decision, order and judgment of Judge Feldstein was not appealed it remains a final determination establishing that claimant's confinement in a DOCS correctional facility in contravention of the sentencing Court's directive was unlawful (see, Mullen v State of New York, 122 AD2d 300, 301; Middleton v State of New York, 54 AD2d 450; Williams v State of New York, 8 Misc 2d 390, 391, affd 5 AD2d 936). Under the circumstances present here such unlawful confinement continued from the eleventh day following claimant's arrival at DOCS Downstate reception center on December 24, 2001 (i.e., from January 3, 2002) until his ultimate transfer to Willard on May 20, 2002, a period of 137 days. Having established the requisite elements of a common law action for false imprisonment (Martinez v City of Schenectady, 97 NY2d 78; Broughton v State of New York, 37 NY2d 451; Lorensen v State of New York, 249 AD2d 762) the claimant is entitled to judgment on the issue of liability as a matter of law. However, as defense counsel correctly asserts in opposition to the motion, claimant's damages cannot be determined on this record. Consequently, a trial on the issue of damages will be scheduled at the Court's convenience as provided in CPLR 3212 (c).

As previously noted both parties seek summary judgment as to that portion of the instant claim which seeks to recover damages arising from the alleged malpractice of DOCS medical personnel in their administration of TB medication. Claimant seeks a determination of liability and defendant has moved for summary judgment dismissing this portion of the claim for lack of jurisdiction in that it was untimely interposed and unsupported by an affidavit of a medical expert. Claimant's motion for summary judgment is not supported by expert medical opinion as is generally required to establish a prima facie case of medical malpractice (see, Wells v State of New York, 228 AD2d 581; Armstrong v State of New York, 214 AD2d 812). Nor are claimant's ambulatory health records in proper evidentiary form to support a motion for summary judgment (see, Joseph E. G. v East Irondequoit Cent. School Dist., 273 AD2d 835). Furthermore, the alleged deleterious effect of the medication upon the claimant's liver function involves a condition beyond the common knowledge of the fact finder and requires expert medical proof in order to sustain a recovery (see, Duffen v State of New York, 245 AD2d 653). Under the circumstances of this case claimant has failed to meet his burden and his motion for summary judgment determining liability based upon the alleged medical malpractice of DOCS medical personnel is denied.

In addition to opposing claimant's motion the defendant has cross-moved to dismiss the medical malpractice portion of the claim for lack of jurisdiction. In doing so defendant relies in part upon claimant's ambulatory health records for March 1, 2002 and March 15, 2002 (attached to claimant's motion papers). These records indicate that DOCS discontinued the administration of the drug INH on or about February 6, 2002. Defendant asserts on the motion that claimant's service of a notice of intention to file a claim upon the Attorney General on May 31, 2002 and service and filing of the claim on May 19, 2003 were untimely as having occurred outside the 90 day period provided therefor in Court of Claims Act § § 10 (3) and 11 (a).

Claimant argues in his reply affidavit that the claim did not accrue until he was able to ascertain the actual injury sustained following examination of his medical records in late April or early May 2002. This argument is belied most notably by claimant's admitted filing of a grievance based upon his medical concerns in January 2002. Furthermore, the "Request for interview or information" forms completed by the claimant on January 13, 2002 (defendant's Exhibit E) clearly demonstrate that he was at that time alleging he was "unnecessarily being forced to take treatment although their [sic] is a serious risk to my health because of previous liver damage" and that the forced administration of medication was "malpractice".

Court of Claims Act § 10 (3) in pertinent part provides as follows:
3. A claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim.
Apparent from the above is claimant's obligation to serve either a notice of intention or claim alleging medical malpractice by a State employee within 90 days of the claim's accrual. A medical malpractice claim based upon administration of a drug is said to accrue when the medication is dispensed (see, Carter v State of New York, 284 AD2d 810; cf., Bikowicz v Nedco Pharmacy, 114 AD2d 708, appeal dismissed 68 NY2d 641). The last day claimant received INH was February 6, 2002 and the claim accrued at the latest on that date.

Failure to comply with the time limitations set forth in Court of Claims Act § 10 deprives this Court of jurisdiction (State of New York v Dewey, 260 AD2d 924) where the defect is raised with particularity either in the answer or by a pre-answer motion to dismiss the claim (see, Court of Claims Act 11 [c]).

In this case the defendant raised the timeliness defense in the Sixth Affirmative Defense of the answer which states:
EIGHTH: That if the claimant's medication for tuberculosis was discontinued prior to March 2, 2002, then the claimant failed to timely serve his notice of intention pursuant to Sections 10 and 11 of the Court of Claims Act, which require a notice of intention to be served within ninety (90) days of the accrual date. The claimant did not serve his notice of intention until May 31, 2002.
The Court finds that the timeliness defense was thus stated with particularity and that the portion of the claim based upon the alleged wrongful administration of medication by DOCS medical personnel must be dismissed for lack of jurisdiction. Since the notice of intention served on May 31, 2002 was not timely filed within 90 days of accrual of the medical malpractice cause of action the claim filed on May 19, 2003 was also untimely pursuant to Court of Claims Act § 10 (3).

The Court rejects claimant's argument that the claim accrued when he discovered his injury upon review of his medical records in either late April or early May, 2002 and that pursuant to CPLR 214-c his service of the notice of intention on May 31, 2002 was timely.

Finally, the portion of the claim which alleges that the defendant violated claimant's constitutional and civil rights is too vague and non-specific to be actionable. Claimant has cited no statutory or other legal basis for his claim and it is unclear whether he seeks to invoke the protection of the United States Constitution or the Constitution of the State of New York. His oblique reference to the violation of constitutional or civil rights without more cannot withstand the defendant's motion and that portion of the claim is likewise dismissed.


November 17, 2003
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated August 17, 2003;
  2. Affidavit of Larry A. Bratton sworn to August 23, 2003 with exhibits;
  3. Notice of cross-motion dated September 24, 2003;
  4. Affirmation of Belinda A. Wagner dated September 24, 2003 with exhibits;
  5. Affidavit of Richard deSimone sworn to September 22, 2003 with exhibits;
  6. Affidavit of Larry A. Bratton sworn to September 29, 2003 with exhibits.