New York State Court of Claims

New York State Court of Claims

JNBAPTISTE v. THE STATE OF NEW YORK, #2004-009-16, Claim No. 107565, Motion No. M-67599


Synopsis


Case Information

UID:
2004-009-16
Claimant(s):
SAMANTHA JNBAPTISTE, as Administratrix of the Estate of PAUL ANTHONY MALCOLM
Claimant short name:
JNBAPTISTE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107565
Motion number(s):
M-67599
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
BALL & RUBIN, LLP
BY: Wayne M. Rubin, Esq.,Of Counsel.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Edward F. McArdle, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
March 4, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant seeks permission to serve and file a late claim pursuant to Court of Claims Act §10(6).

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation of Wayne M. Rubin, Esq., Affidavit of Samantha Jnbaptiste, Physician Affidavit of Gabriele Blumberg, with Exhibits 1,2,3,4


Memorandum of Law in Support 5

Affirmation in Opposition, with Exhibit 6

On April 29, 2001, while incarcerated at Auburn Correctional Facility, Paul Malcolm, claimant's decedent, was exposed to pepper spray. Mr. Malcolm, who had a long history of asthma, then suffered an asthma attack and died on May 2, 2001. Claimant Samantha Jnbaptiste received limited letters of administration in the estate of Paul Malcolm on March 26, 2003, from the Bronx County Surrogate's Court. A claim was thereafter filed with the Chief Clerk of the Court of Claims on April 4, 2003 and served upon the Attorney General on April 21, 2003. In this claim, three causes of action were alleged. The first cause of action sought to recover damages for decedent's conscious pain and suffering, alleging negligence against the State in the use of the pepper spray to which claimant was exposed on April 29, 2001. The second cause of action sought damages for conscious pain and suffering based upon alleged medical malpractice in treating decedent's asthma on May 2, 2001. The third cause of action seeks damages for the wrongful death of decedent, resulting from the same alleged acts of medical malpractice.

In its answer, defendant raised as an affirmative defense, the fact that claimant had failed to either serve a notice of intention, or serve and file a claim, within 90 days after accrual (see Exhibit C to Items 1-4, par. 9). In response to that affirmative defense, claimant has brought the instant motion seeking permission to serve and file a late claim.

Pursuant to Court of Claims Act § 10(2), a claim against the State seeking damages for wrongful death must be filed with the Clerk of the Court and served upon the Attorney General within 90 days after the appointment of a personal representative of the decedent, unless the claimant within such time serves upon the Attorney General a notice of intention to file a claim, in which case the claim must be served and filed within two years after the death of the decedent. In this claim, it is apparent that a claim was served upon the Attorney General, and filed with the Chief Clerk of the Court of Claims, within 90 days after claimant received her limited letters of administration in the estate of Paul Malcolm. Therefore, there is no dispute, and in fact defendant concedes, that the third cause of action of this claim seeking damages for wrongful death was timely served and filed. It is well established, however, that the provisions of Court of Claims Act § 10(2), pertaining to wrongful death claims, do not apply to a survival action seeking to recover for decedent's conscious pain and suffering (Pelnick v State of New York, 171 AD2d 734). Instead, such actions are governed by Court of Claims Act § 10(3), which requires that a claim be served and filed, or in the alternative, that a notice of intention be served, within 90 days after accrual of the cause of action. In this case, neither a claim nor a notice of intention seeking damages for decedent's conscious pain and suffering, as alleged in the first two causes of action, was served and/or filed within such time period.

The service and filing requirements of the Court of Claims Act are jurisdictional prerequisites to the commencement and maintenance of a claim against the State, and must be strictly construed (Finnerty v New York State Thruway Authority, 75 NY2d 721; Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607). Accordingly, even though defendant has not sought to dismiss the causes of action for conscious pain and suffering asserted in Claim No. 107565 in this proceeding, such causes of action are jurisdictionally defective and subject to dismissal at any time.[1]

Claimant apparently concedes that these causes of action for conscious pain and suffering based upon alleged negligence and medical malpractice are both untimely as to both service and filing, and therefore she brought the instant motion seeking permission to serve and file a late claim.

In order to determine an application for permission to serve and file a late claim, the Court must consider, among other relevant factors, the six factors set forth in § 10(6) of the Court of Claims Act. The factors set forth therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely file a claim and the failure to serve upon the Attorney General a timely claim or notice of intention; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim (see, Matter of Gavigan v State of New York, 176 AD2d 1117).

With regard to the factor of excuse, claimant asserts that she was unable to timely serve or file a claim because neither she, nor decedent's family, were advised of Mr. Malcolm's death until approximately five months after it occurred[2], and therefore, without any such knowledge, claimant was unaware that a potential claim even existed. The Court finds the fact that claimant was unaware of Mr. Malcolm's illness and subsequent death throughout the statutory period for service and filing of a claim, through no fault of her own, to be a justifiable excuse for her failure to timely serve and file a claim.

This excuse, however, does not justify the long delay between such notification (in October, 2001), and the eventual service and filing of the instant claim in late April, 2003. Although claimant would not have had authority to serve and file a claim until she received her appointment as decedent's personal representative, no explanation has been provided as to whether there was a justifiable reason why such appointment was not obtained until March, 2003.

Accordingly, the Court finds that even though claimant provided a justifiable excuse for failing to serve and file a claim within the statutory period, claimant did not provide an acceptable excuse for her failure to serve and file a claim once she was notified of decedent's death.

The factors of notice, opportunity to investigate, and substantial prejudice have not been contested by defendant, and will be considered together. Both the incident of April 29, 2001, in which pepper spray was allegedly used, and the medical treatment provided to Mr. Malcolm on May 2, 2001, are well documented in records maintained by Auburn Correctional Facility. In addition, the Onondaga County Medical Examiner conducted an autopsy and provided a report following Mr. Malcolm's death. Furthermore, as set forth in the papers before the Court on this motion, it appears that the incident involving pepper spray on April 29, 2001 was extensively investigated. There can be no question, therefore, that the State was on notice of the facts and circumstances underlying this claim. Furthermore, and as previously discussed, claimant's existing claim for wrongful death has been timely served and filed, and the State is currently defending that cause of action. The State, therefore, cannot establish any substantial prejudice should it be required to defend the additional causes of action seeking damages for conscious pain and suffering.

In order to establish a meritorious cause of action, it is the burden of the claimant to show that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid claim exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1). Claimant only has to establish the appearance of merit and need not prove a prima facie case at this stage of the proceedings.

In support of this application, claimant has submitted a redacted copy of a "Final Report of the New York State Commission of Correction" regarding the death of Mr. Malcolm (see Exhibit G to Items 1-4). This report indicates that Mr. Malcolm's exposure to pepper spray on April 29, 2001 violated a directive issued by the Department of Correctional Services, as well as a memorandum issued by the Deputy Superintendent of Security.

With regard to the allegations of medical malpractice resulting in the death of Mr. Malcolm, claimant has submitted the affidavit of Gabriele Blumberg, a physician who is board certified in internal medicine and emergency medicine, in support of that cause of action.

Based on these submissions, the Court finds that claimant has more than satisfied the minimal standards of Santana, and that claimant has, for purposes of this application, asserted meritorious causes of action.

It does not appear from the papers submitted herein that claimant has any other available remedy.

The Court may in its discretion place as much or as little weight on any of the six factors to be considered pursuant to the statute. Under the current law "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979) and none of the factors can require denial as a matter of law.

Upon weighing and considering all of the factors set forth in Court of Claims Act § 10(6), it is the opinion of this Court that claimant's application seeking damages for the conscious pain and suffering of claimant's decedent, based upon causes of action sounding in negligence and medical malpractice, should be granted.

Since the portion of Claim No. 107565 seeking damages for wrongful death was timely served and filed, and in the interest of judicial economy, this Court therefore directs that Claim No. 107565 be amended to include the two new causes of action seeking damages for pain and suffering, rather than having claimant serve and file a new, separate claim for such damages.

Accordingly, it is

ORDERED, that Motion No. M-67599 is hereby GRANTED, as provided herein; and it is further

ORDERED, that the portion of Claim No. 107565 seeking damages for conscious pain and suffering is hereby dismissed, sua sponte, as untimely served and filed; and it is further

ORDERED, that claimant's application seeking permission to serve and file a late claim seeking damages for such pain and suffering is hereby GRANTED, to the extent that claimant is hereby given permission to amend existing Claim No. 107565 to assert such causes of action; and it is further

ORDERED, that claimant is directed to serve her amended claim upon the Attorney General either personally or by certified mail, return receipt requested, and to file the amended claim with the Chief Clerk of the Court of Claims, within 45 days from the filing date of this decision and order, and the defendant shall have 40 days after service of the amended claim to serve and file its answer to the amended claim; and it is further

ORDERED, that the third affirmative defense asserted in the State's original answer to this claim is hereby stricken.


March 4, 2004
Syracuse, New York
HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims





[1] As required by § 11(c) of the Court of Claims Act, defendant did raise an objection to the timeliness of service of the claim as an affirmative defense in its answer, and therefore has preserved its right to seek dismissal of that portion of the claim seeking damages for conscious pain and suffering.
[2] The Court notes that decedent's mother, Monica Oliver, has instituted a claim against the State seeking damages based upon the alleged negligence of the State in failing to timely advise her of her son's death (Monica Oliver v State of New York, Claim No. 105591).