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
, 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
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
, 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
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
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.