Filed papers: Claim
The claim in this action is alleged to have accrued on June 30, 2004, at Oneida
Correctional Facility, when Claimant, an inmate of that facility, was directed
to report to the health care unit in the facility to be tested for tuberculosis.
The test to be given consisted of an intradermal injection of tuberculin
purified protein derivative (PPD). The substance that was mistakenly injected
into Claimant was TTCV, tetanus toxoid-containing vaccine, which is properly
delivered by intramuscular injection. Claimant seeks to recover compensation
for the pain and suffering, past and future, and for future medical expenses
related to the damage done to his skin.
In lieu of an answer, counsel for Defendant has moved for an order dismissing
the claim on the ground that it is untimely. In support of this motion, counsel
has submitted a copy of the envelope in which the claim was received, showing
that it was delivered – by certified mail, return receipt requested
– on March 28, 2005 (Marmelstein affirmation, Exhibit B). Previously, on
October 13, 2004, Claimant had served – again by certified mail, return
receipt requested – a notice of intention to file a claim (id.
Exhibit C). Inasmuch as the claim alleges a single cause of action based on
the negligence of State employees that arose on June 30, 2004, either a notice
of intention had to be served, or a claim had to be filed and served, within 90
days, or by September 28, 2004 (Court of Claims Act §10). Claim No.
110686 was untimely and must be dismissed.
In recognition that compliance with the time requirements contained in the
Court of Claims Act is a jurisdictional prerequisite to commencing an action in
this Court (Dreger v New York State Thruway Auth., 81 NY2d 721, 724
; Rodriguez v State of New York, 307 AD2d 657 [3d Dept 2003]),
Claimant has cross-moved for permission to file an untimely claim pursuant to
section 10(6) of the Court of Claims Act.
The cause of action being asserted by Claimant is subject to the three-year
statute of limitations found in CPLR 214, and consequently the motion for
permission to late file is timely. It is well-settled that in determining
whether to grant such relief, a court must consider, among others, the following
factors: 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) whether 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) if there is
any other available remedy (see Bay Terrace Coop. Section IV v New
York State Employees' Retirement System Policemen's & Firemen's Retirement
Sys., 55 NY2d 979, 981 ; Matter of Gavigan v State of New
York, 176 AD2d 1117, 1118 [3d Dept 1991]).
Claimant concedes that there is no acceptable excuse for the failure to comply
with the time requirements of the Court of Claims Act, and defense counsel
concedes that Claimant would have no remedy for any injury other than an action
against the State. With respect to the interrelated factors of notice to
Defendant, opportunity to investigate, and prejudice arising from the delay, the
parties disagree. Claimant contends that the State is on full notice both of
the underlying events and of the prospect of litigation as a result of 1) the
inmate grievances filed by Claimant and five other inmates who received the TTCV
injection and 2) the apparently timely-commenced claims brought by four of the
affected inmates (Jolly v State of New York
, Claim No. 110687; Di
Nicola v State of New York
, Claim No. 110688; Holder v State of New
, Claim No. 110691; and Perrara v State of New York
, Claim No.
Counsel for Defendant asserts that institutional grievances do not
automatically satisfy the notice requirements of section 10(6) because they are
not a sufficient predictor of litigation and that one Claimant may not simply
"hitch a ride on another claimant's action," citing to Nyberg v State of New
(154 Misc 2d 199, 202 [Ct Cl 1992]). In Nyberg
former Judge Donald J. Corbett, Jr., denied an application to late file a claim
based on allegations of inadequate design at a certain intersection, despite the
fact that notices of intention had been filed
by two other litigants, at least one of which set out the same theory of
liability. Observing that "[t]he claims based upon those notices of intention
will not have to meet the statutory prerequisite of the appearance of
meritoriousness" that is placed on the litigant who seeks late claim relief,
Judge Corbett held that without the benefit of expert opinion, the litigant who
had failed to act in a timely fashion failed to establish the appearance of
merit necessary to justify late claim relief under section 10(6). Thus,
stands for the proposition that there is no lesser standard with
respect to merit when the proposed late claim mirrors a timely claim that will
be heard in any event. When it comes to the issues of notice, opportunity to
investigate and prejudice, however, the existence of timely-commenced claims
arising from the same transaction and occurrence may legitimately play a
critical and very helpful role to the tardy litigant.
While an inmate grievance, in and of itself, may not forecast litigation, the
multiple grievances filed in connection with this incident actually caused an
investigation to be carried out and, because the situation was sufficiently
unusual, inevitably alerted authorities to the possibility that lawsuits might
result. In response to the grievances commenced by Claimant and inmates Castro,
Jolly, Di Nicola, and Holder (Snyder Affirmation, Exhibits B, C, D, E, and F),
the grievances were accepted in part and the official response read as
Grievance is accepted only to the extent written above.
In this situation, therefore, both the several inmate grievances and the
timely-filed claims arising out of the same event provided more than adequate
notice and opportunity to Defendant, and granting the requested relief will not
result in undue prejudice.
The final, and often the most important, factor is the apparent merit of the
proposed claim. In the instant case, where correction officials are
acknowledging the mistaken introduction of a toxoid-containing vaccine into the
bodies of certain prison inmates, the allegations of negligence are to some
extent already proven. Defense counsel argues that Claimant has provided little
information about the nature or extent of his injuries, but that confuses the
amount of damages, or degree of harm, with the facts relevant to liability. An
applicant for late claim relief must establish not some quantum of damages but
merely that the proposed claim
is "not patently groundless, frivolous, or legally defective" and "that there is
reasonable cause to believe that a valid cause of action exists" (Matter of
Santana v New York State Thruway Auth.,
92 Misc 2d 1 [Ct Cl 1977]).
Claimant has successfully carried that burden.
Taking into account the six statutorily prescribed factors, the Court
finds them to weigh in favor of granting Claimant's motion for permission to
file a late claim. Claimant therefore is directed to file and serve a claim
identical to the proposed claim, annexed as Exhibit A to the moving papers, and
to do so in conformity with the requirements of Court of Claims Act §§
10, 11 and 11-a within thirty (30) days of the date this Decision and Order is
Defendant's motion is GRANTED and Claim No. 110686 is dismissed; Claimant's
cross- motion is also GRANTED.