New York State Court of Claims

New York State Court of Claims

DRISCOLL v. THE STATE OF NEW YORK, #2005-019-532, Claim No. NONE, Motion No. M-69847


Synopsis


Claimant's motion for leave to file a late claim relative to slip and fall on stairs is granted, but denied with respect to proposed medical malpractice cause of action.

Case Information

UID:
2005-019-532
Claimant(s):
SHAWN DRISCOLL
Claimant short name:
DRISCOLL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-69847
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
SHAWN DRISCOLL, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Geoffrey B. Rossi, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
April 26, 2005
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate appearing pro se, moves for permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6). The State of New York (hereinafter "State") opposes the motion.

Claimant alleges that he slipped and fell when directed to walk down flooded stairs in a back area of the G-block housing area in Elmira Correctional Facility (hereinafter "Elmira") while on his way to breakfast sometime in the third week of February 2004. Claimant further alleges that he has been denied proper medical treatment for the resulting injury to his right knee which in turn has caused damage to his spine due to his inability to walk properly.


As a threshold matter, the court must first determine whether it has jurisdiction to review and determine this motion relative to the proposed causes of action, namely negligence and medical malpractice.[1] The court has jurisdiction over a motion to late file when it is filed within the comparable time period for bringing similar actions against a citizen of the state. (CCA 10 [6]). Here, the comparable time period for a negligence cause of action is three years, while the comparable time period for a medical malpractice cause of action is two and one half years. (CPLR 214 & 214-a). As such, this motion filed on March 4, 2005 is timely with respect to these causes of action which accrued, at the earliest, sometime in the third week of February 2004.


The factors that the court must consider in determining a properly framed CCA 10 (6) motion are whether:

1. the delay in filing the claim was excusable;

2. the State had notice of the essential facts constituting the claim;

3. the State had an opportunity to investigate the circumstances underlying the claim;

4. the claim appears to be meritorious;

5. the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the State; and

6. the claimant has any other available remedy.


The issue of whether the proposed claim appears meritorious has been characterized as the most decisive component in determining a motion under CCA 10 (6), since it would be futile to permit a meritless claim to proceed. (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10). In order to establish a meritorious claim, claimant must establish 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. (Id. at 11). "While this standard clearly places a heavier burden on a claimant who has filed late than upon one whose claim is timely, it does not, and should not, require him to definitively establish the merits of his claim, or overcome all legal objections thereto...." (Id. at 11-12). Finally, it is well-settled that "[f]acts stated in a motion for leave to file a late claim against the State are deemed true for purpose of motion, when not denied or contradicted in opposing affidavits." (Sessa v State of New York, 88 Misc 2d 454, 458, affd 63 AD2d 334, affd 47 NY2d 976). The court will address the factor of merit with respect to each proposed cause of action separately.


The court will first examine claimant's proposed negligence cause of action resulting from his alleged slip and fall.[2] In examining the factor of merit, it is helpful to understand the burden claimant would have to meet at trial to establish liability in a slip and fall case. At trial, claimant would have to prove, by a preponderance of the credible evidence, that a dangerous condition existed; that the State either created said dangerous condition or had actual or constructive notice thereof and failed to alleviate said condition within a reasonable time; and that said dangerous condition was a proximate cause of the accident. (Dapp v Larson, 240 AD2d 918). Here, claimant has not submitted any documentary evidence regarding his alleged slip and fall, but rather relies solely on his own affidavit in which he avers that correction officers saw the flooded stairs and specifically directed claimant to walk down the flooded stairs despite claimant's protestations. Claimant specifically names the three correction officers he alleges were present at the time of his fall, namely officers Shuduke, Bailey and Mouze.


In opposition, the State indicates that it has been unable to "confirm the authenticity" of officers Bailey and Mouze, but was able to identify and locate officer Shadduck (not Shuduke as listed by claimant).[3] (Affirmation of Geoffrey B. Rossi, AAG, ¶ 12). The State has submitted an affidavit from officer Shadduck, as well as affidavits from three other Elmira employees all of which will be discussed. This court finds that officer Shadduck's affidavit is most interesting not for what it says, but for what it does not. For instance, officer Shadduck never directly denies seeing the stairs flooded; he does not deny that he or any other correction officer directed claimant to walk down flooded stairs; nor does he deny that claimant ever fell as described. Rather, officer Shadduck states: "I was unaware that inmate Driscoll had injured himself. For the past year I have observed Inmate Driscoll and he does not appear to be or have been injured. I have not observed or been told by inmate Driscoll that he injured his leg." (Shadduck Affidavit, ¶ 4).


Additionally, the court notes that officer Shadduck's affidavit is similar in many respects to the affidavit from Charles Derr, a recreational instructor at Elmira who also states he has not observed claimant with a limp or any physical limitations particularly as part of his weight lifting training. In essence, in this court's view, neither of these affidavits denies or contradicts claimant's version of events, but rather seem to argue that even if there was such an incident neither of these employees has noticed claimant suffering from any injury as a result thereof. For these reasons, the court finds the affidavits from officer Shadduck and Charles Derr to be of minimal value and insufficient to deny or contradict the factual allegations of claimant. (Sessa, 88 Misc 2d 454, 458, affd 63 AD2d 334, affd 47 NY2d 976).


The State has also submitted affidavits from Robert M. Emmick, Fire & Safety Officer, and Peter Buzzetti, a plant superintendent, at Elmira. Before proceeding with the discussion of these submissions, the court emphasizes that the concept of notice discussed at this stage is whether the State had notice, actual or constructive, of the alleged dangerous condition. The issue of whether the State had notice of the essential facts of this case as set forth in CCA 10 (6) is discussed separately hereinbelow. (See discussion, infra, p 7). Mr. Emmick avers that his job responsibilities include investigating inmate injuries. Mr. Emmick further states that his inmate injury report log for February 2004 does not include any entry for claimant. For his part, Mr. Buzzetti avers that he does not recall nor was he able to locate any reports and/or complaints of flooding in the G-block area in February 2004. While this may well be true, in this court's view, neither affidavit denies or contradicts claimant's specific allegation that the State had actual notice of this dangerous condition based on the observations of the officers at the scene who saw the flooded stairs. Stated another way, if claimant's version of events is to be believed, then he has stated a meritorious cause of action despite a disputed factual issue of whether there were official reports of said condition. (Marcus v State of New York, 172 AD2d 724). As such, the court finds that claimant's submissions are sufficient to raise the possibility that the State may have had actual notice of a dangerous condition. Accordingly, in viewing this record as a whole, the court finds claimant has established that his proposed negligence cause of action has the appearance of merit.


With respect to the medical aspects of claimant's allegations, it has long been recognized that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons. (Rivers v State of New York, 159 AD2d 788, lv denied 76 NY2d 701). Here, claimant asserts that he has been denied adequate medical treatment for his leg and spine. It is well-settled that a late filing application alleging a proposed medical malpractice cause of action requires an affidavit from an expert. (Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804). No such expert testimony is submitted nor has claimant submitted any medical records. Thus, claimant has failed to establish that his proposed medical malpractice cause of action has the appearance of merit.


The court will address the remaining factors in relation to both proposed causes of action. With respect to an excusable delay in filing the claim, claimant explains that he is unfamiliar with the law and is incarcerated. It is well-settled that neither ignorance of the law nor incarceration are acceptable excuses. (Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654; Hall v State of New York, 85 AD2d 835). This factor weighs against claimant.


Notice of the essential facts, opportunity to investigate and substantial prejudice comprise the next three factors. Claimant alleges that notice of the essential facts constituting this claim was obtained by the presence of various correction officers during this incident. As noted above, the concept of notice of the essential facts in a late filing application relates to the State's notice of an incident after it has actually occurred, thereby permitting the State to investigate the claim if it so chooses. (Wolf v State of New York, 140 AD2d 692; Matter of Crawford v City Univ. of N. Y., 131 Misc 2d 1013, 1015-1016). In other words, notice of the essential facts is different than the earlier discussed concept of whether the State had notice, actual or constructive, of the dangerous condition.[4] Given the ambiguities noted hereinabove in officer Shadduck's affidavit who is alleged to have been present at the scene, the court finds that the State had notice of the essential facts of this incident. With respect to opportunity to investigate and substantial prejudice, the State does not specifically address these two factors. As such, the court finds these three factors weigh in claimant's favor.


The last factor is the availability of an alternate remedy. Based on this record, the court finds no alternate remedy is available and, as such, this factor weighs in claimant's favor.


Accordingly, upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the court finds as follows:


(1) with respect to the proposed negligence cause of action arising from the slip and fall, the court finds that five of the six factors, including the all-important factor of merit, weigh in favor of claimant's application; and


(2) with respect to the proposed medical malpractice cause of action, the court finds that two of the six factors, including the all-important factor of merit, weigh against claimant's application.


Consequently, in view of the foregoing, claimant's motion for permission to late file, Motion No. M-69847, is GRANTED IN PART and DENIED IN PART in accordance with the foregoing. Claimant shall file a claim with the Clerk of the Court and serve a copy of the claim upon the attorney general within sixty (60) days from the date of filing of this Decision and Order with the Clerk of this Court. The proposed claim should be revised to omit the medical malpractice cause of action. The service and filing of the claim shall be in conformity with all applicable statutes and rules of the court with particular reference to CCA 10, 11 and 11-a.


April 26, 2005
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims


The court has considered the following papers in connection with this motion:
  1. Notice of Motion No. M-69847, dated February 8, 2005, and filed March 4, 2005.
  2. Affidavit of Shawn Driscoll, in support of motion, sworn to February 8, 2005.
  3. Proposed Claim, verified February 8, 2005.
  4. Affirmation of Geoffrey B. Rossi, AAG, in opposition to motion, dated April 6, 2005, and filed April 8, 2005, with attached exhibits.
  5. Affidavit of Albert Shadduck, in opposition to motion, sworn to March 29, 2005.
  6. Affidavit of Peter Buzzetti, in opposition to motion, sworn to March 24, 2005.
  7. Affidavit of Robert M. Emmick, in opposition to motion, sworn to March 24, 2005.
  8. Affidavit of Charles Derr, in opposition to motion, sworn to March 29, 2005.
  9. Affidavit in Reply of Shawn Driscoll, in support of motion, sworn to April 12, 2005, and unfiled.

[1]To the extent that claimant also describes his theory of liability as having been denied due process and cruel and inhuman treatment, constitutional remedies will not be implied when, as is the case here, claimant's "[c]onstitutional tort allegations may be analogized to an existing common-law tort[s] for which there are adequate alternate remedies." (Augat v State of New York, 244 AD2d 835, 837, lv denied 91 NY2d 814).
[2]Initially, the court notes that claimant has not provided an exact date of accrual, rather only has identified the third week in February, 2004. CCA 11 (b) requires, among other things, that "[t]he claim shall state the time when...such claim arose...." The State has not raised an objection to the lack of a specific date. In any event, the court finds that the State has not been prejudiced in any way by claimant's failure to state the "time when" the proposed claim accrued any more exactly than the third week in February, 2004. In sum, the court finds such omission does not prevent a review of this application. (Ochei v State of New York, Ct Cl, August 2, 2000, Read, P.J., Claim No. None, Motion No. M-61475 [UID No. 2000-001-038]). Selected unreported decisions from the Court of Claims are available via the Internet at
[3]The State's opposing affirmation indicates it was unable to "[a]scertain whether or not there are Corrections Officers named "Bailey" and "Mouze" at the Elmira Correctional Facility...." (Affirmation of Geoffrey B. Rossi, AAG, ¶ 12). In reply, claimant offers that officer Bailey may now be employed at another correctional facility, while officer Mouze may have retired. The court did not read the State's affirmation as a representation that it limited its search to Elmira Correctional Facility.
[4]Otherwise, in late filing motions, the State would be deemed to have notice of every claim arising from a defect or dangerous condition it created or knew or should have known existed, even before an incident occurs.