New York State Court of Claims

New York State Court of Claims

LAUREANO v. THE STATE OF NEW YORK, #2006-044-502, , Motion No. M-72073


Synopsis


Claimant’s motion to file a late claim is untimely for conscious pain and suffering claims based upon medical malpractice and for wrongful death of inmate who committed suicide; the Court has no jurisdiction over Constitutional Claims, Punitive Damages and Attorneys’ Fees Claims, thus late claim relief is not available for any of those causes of action. The cause of action for conscious pain and suffering sounding in negligent supervision is meritorious and permission to file a late claim for that is granted. However, there is no valid cause of action for the loss of companionship of a child or a sibling, and thus the derivative claims lack merit. Claimants' motion for permission to late file derivative claims is denied

Case Information

UID:
2006-044-502
Claimant(s):
MARISOL LAUREANO, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF SILVERIO DELRIOS, DECEASED, AND OLGA DELRIOS AND VENUS RIVERA
Claimant short name:
LAUREANO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-72073
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
EDWARD W. MILLER, ESQ.
Defendant’s attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Carol A. Cocchiola, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 25, 2006
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read on Claimants’ motion for permission to file a late claim pursuant to Court of Claims Act §10 (6):

(1) Notice of Motion filed July 27, 2006 and Affirmation in Support of Edward W. Miller, Esq. with annexed Exhibits 1 through 4;

(2) Affirmation in Opposition of Carol A. Cocchiola, AAG filed August 25, 2006;

(3) Claimants’ Reply Memorandum received September 8, 2006. Claimants move for permission to file a late claim pursuant to Court of Claims Act § 10 (6) with respect to claims for wrongful death and conscious pain and suffering of Silverio Delrios (hereinafter “decedent”), and with respect to derivative claims by decedent's mother and sisters. It is undisputed that decedent died after hanging himself in his cell while incarcerated at

Elmira Correctional Facility on October 8, 2003. On January 30, 2004, a Notice of Intention to File a Claim was presented in person to the Claims Bureau of the Office of the Attorney General in New York City by Marisol Laureano, the sister of the decedent. This Notice of Intention was rejected by the Claims Bureau because it was unverified. The same Notice of Intention, with an additional page entitled 'Verification' was thereafter received by the Claims Bureau on February 3, 2004. Again, this Notice of Intention was rejected by the Claims Bureau due to defective language in the verification. On February 18, 2004, the Claims Bureau received a third Notice of Intention from Ms. Laureano, which apparently was not rejected by the Claims Bureau.[1]

Over a year and a half later, on September 27, 2005, Limited Letters of Administration (hereinafter "Letters") were granted to Marisol Laureano. Claimants Marisol Laureano and Venus Rivera are decedent’s sisters, and claimant Olga Delrios is decedent's mother. Decedent was 33 years old on the date of his death.[2]

A claim was personally served on the Claims Bureau on October 3, 2005, but the claim - as was conceded in claimants' motion papers - was never filed with the Office of the Clerk of the Court of Claims, as required by Court of Claims Act § 10. Defendant served and filed a verified answer, and subsequently timely filed and served an amended answer, with the additional affirmative defense that claimants had failed to file the claim within two years after the death of decedent, as required by Court of Claims Act § 10 (2).

The proposed claim submitted with claimants' motion papers asserts causes of action for wrongful death, decedent's conscious pain and suffering, and derivative claims by his mother and sisters. Claimants' primary allegation is that defendant provided inadequate psychiatric care to decedent. The claim also seeks damages for violations of the New York State Constitution (article I, §§ 1, 5, and 11), the United States Constitution (1st, 5th, 8th, and 14th Amendments), punitive damages, and attorneys' fees.

I. Motion for Permission to Late File
A. Jurisdiction

A motion seeking permission to file a late claim must be filed within the statute of

limitations period attributable to each underlying cause of action (Court of Claims Act § 10 [6]).

1) Conscious Pain and Suffering

The portion of this motion asserting decedent's conscious pain and suffering is grounded in both negligence[3] and medical malpractice. Specifically, the allegations pertaining to a general lack of supervision are based in negligence, while the allegations relative to inadequate psychiatric care lie in medical malpractice. Negligence claims must be filed within three years from accrual (CPLR 214), while medical malpractice claims must be filed within two-and-one-half years from the date of accrual (CPLR 214-a).[4]

This motion is clearly timely as regards the negligence portion of the conscious pain and suffering claim, since it was filed on July 27, 2006, which is within three years from the accrual date of October 8, 2003, decedent's date of death.

However, the motion is not timely as regards the inadequate psychiatric care/medical malpractice claim, as it would have had to have been filed by April 10, 2006 in order to fall within the two-and-one-half year statutory limitations period applicable to medical malpractice.[5]

Accordingly, the Court only has jurisdiction to review the motion for permission to file a late claim with regard to the negligence component of the conscious pain and suffering claim. The Court does not have the jurisdiction to review the medical malpractice portion of that claim, and therefore the motion for permission to late file must be denied as it pertains to said medical malpractice allegations (see generally Doe v State of New York, 221 AD2d 218, 219).

2) Wrongful Death

Wrongful death claims must be filed within two years of the accrual of the cause of action (Court of Claims Act § 10 [2]). In this case, therefore, the motion for permission to late file would have to have been brought on or before October 11, 2005.[6] Because this motion was not filed until July 27, 2006, the Court is without jurisdiction to consider the motion with regard to the claim for wrongful death, and the motion for permission to late file must be denied as it pertains to that cause of action (see Doe v State of New York, supra; Liddell v State of New York, 182 Misc 2d 133, affd 278 AD2d 928).

3) Derivative Claims

The relevant limitations period for a derivative claim is governed by the underlying main claim (see Quinto v New York City Tr. Auth., 7 AD3d 689; Kramer v Twin County Grocers, 151 AD2d 722) In this instance, therefore, the mother's and sisters' proposed derivative causes of actions for pain and suffering would be grounded in both negligence and medical malpractice and the same analysis stated above is applicable. Because the statutory limitations period has not expired with regard to the negligent supervision component of the underlying claim, the Court does have jurisdiction to review the merits of the Court of Claims Act § 10 (6) motion in relation to the proposed derivative claims.

4) Constitutional Claims, Punitive Damages and Attorneys’ Fees Claims

The Court of Claims does not have jurisdiction to consider Federal Constitutional claims (Brown v State of New York, 89 NY2d 172, 184). Nor does it have jurisdiction to consider either punitive damages, which are not permissible in the Court of Claims (Sharapata v Town of Islip, 56 NY2d 332), or the grant of attorneys’ fees, which is explicitly prohibited (Court of Claims Act § 27). Accordingly, the motion to file a late claim with respect to those causes of action is denied. Claimants also assert that by its negligent supervision, defendant violated decedent’s rights under the New York State Constitution. Given that adequate remedies exist for defendant’s alleged conduct, such as causes of action for negligence, medical malpractice and wrongful death, this court need not recognize a constitutional tort claim (see Martinez v City of Schenectady, 97 NY2d 78; Bullard v State of New York, 307 AD2d 676).[7] To the extent that the motion seeks permission to file a late claim alleging violations of the State Constitution, it is also denied.
B. Court of Claims Act § 10 (6) factors

The items remaining over which the Court has jurisdiction, and thus the only matters the Court will review under the motion for permission to late file a claim, are: 1) a proposed claim for decedent's conscious pain and suffering sounding in negligent supervision, and 2) proposed derivative claims by decedent's mother and sisters.
The factors that the Court must consider in determining a motion to permit a late

filing of a claim are whether:
1) the delay in filing the claim was excusable;
2) defendant had notice of the essential facts constituting the claim;
3) defendant 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 defendant; and
6) claimants have any other available remedy.
1. Merit
The issue of whether the proposed claim appears meritorious is the most crucial

component in determining a motion under Court of Claims Act § 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, claimants 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).

a). Merit of Proposed Conscious Pain and Suffering Cause of Action
This proposed cause of action now sounds solely in negligence, due to the Court's

lack of jurisdiction to consider the medical malpractice component of the claim. Claimants' proposed claim alleges a violation of decedent's right to safe custody (proposed claim, ¶9), and a violation of decedent's right to be free from negligent custodial care (proposed claim, ¶14).
Claimants argue their submission of the Final Report (hereinafter “Report”) of the

New York State Commission of Correction into the death of decedent is adequate support for the claim of negligent supervision against defendant (affirmation of Edward Miller, Esq., ¶10). The Report appears to find fault with the review by the Office of Mental Health (hereinafter “OMH”) of decedent's medical record upon his arrival at Elmira Correctional Facility, and with OMH's lack of response to the Correctional Facility's counselor's 'immediate' referral of decedent on the day preceding decedent's suicide.

In response, defendant contends that the Report does not equate to an affidavit from a medical expert that a deviation from the standard of medical care occurred, and also points out that substantive responses to the Report filed by the State Office of Mental Health were not included with the motion papers. Defendant’s contention that a medical expert's affidavit is necessary to establish merit is inapplicable as regards the claim for negligent supervision, as the requirement of a medical expert's affidavit is only necessary where the claim is based on medical malpractice (Tortorici v State of New York, Ct Cl, December 21, 2001, Lebous, J., Claim No. 104703, Motion No. M-64067, Cross Motion No. CM-64227, p 6, UID # 2001-019-580).

While that Report would have been insufficient to support the claimants' proposed conscious pain and suffering cause of action based on a medical malpractice component, the Court finds that it is sufficient to support the proposed conscious pain and suffering cause of action based on negligent supervision (see id.). Consequently, this Court finds that the proposed claim for decedent's conscious pain and suffering arising from defendant’s alleged negligent supervision does appear meritorious.

b). Merit of Proposed Derivative Causes of Action
The sole allegations in the proposed claim relating to the mother's and

sisters' derivative claims are their allegations that decedent's mother “has been deprived of the future benefits of their parent to son association, relationship and support and [decedent's sisters] have been deprived of their sibling to sibling association and relationship” (proposed claim, ¶11). Defendant asserts that there is no merit to the mother's cause of action because of decedent's status as a 33-year-old, emancipated adult, and further asserts that without such a derivative claim for a parent, there cannot be such a claim for siblings.

The Court agrees. It is well-settled that an adult child has “no legal obligation to provide services and/or monetary support to his or her parents [citation omitted]” (Scalone v Phelps Mem. Hosp. Ctr., 184 AD2d 65, 72), and vice versa, that the parents' duty of support ends when the child reaches age 21 (see Foster v Daigle, 25 AD3d 1002, lv dismissed 6 NY3d 890; Smith v Bombard, 294 AD2d 673, lv denied 98 NY2d 609). Accordingly, there could be no pecuniary loss in this instance. Regarding any claim for alleged non-pecuniary loss, it is also well-established that there is no cause of action for the loss of a child's companionship (White v City of New York, 37 AD2d 603; Devito v Opatich, 215 AD2d 714, 715); nor any other claim of emotional distress even if the child was a minor (Tobin v Grossman, 24 NY2d 609; Lauver v Cornelius, 85 AD2d 866). Consequently, the Court finds that claimant Olga Delrios does not possess a derivative claim seeking either pecuniary or non-pecuniary damages due to the death of her adult son.

Further, there is also no cognizable cause of action for loss of companionship by a sibling (Douglas v New York City Tr. Auth., 91 AD2d 1057). Claimants do not allege any pecuniary loss on behalf of decedent's sisters.

In other words, claimants have failed to establish that their proposed derivative causes of action appear meritorious.

2. Remaining Factors
The next factor is whether claimants are able to demonstrate an excuse for

their delay in filing the claim. No excuse has been offered, as defendant points out. This factor weighs against claimants with regard to both the pain and suffering claim and the derivative claims.

Notice of the essential facts, opportunity to investigate and lack of substantial prejudice comprise the next three factors, and are appropriately analyzed together since they involve similar considerations. Defendant concedes that it had notice of the essential facts and an opportunity to investigate, while speculating that it may suffer substantial prejudice due to the delay in filing this claim. Even without such concessions and speculation, the Court would have found such notice and opportunity based upon the incident itself and the subsequent investigation. Obviously, a suicide within a correctional facility generates an immediate internal investigation which would put Defendant on notice of these essential facts and provide an opportunity to investigate within the statutory 90-day period (Matter of Santana v New York State Thruway Auth., supra). This Court finds that the three factors of notice, opportunity to investigate and substantial prejudice all weigh in claimants' favor with regard to the negligent supervision and the derivative claims.

The last factor is the availability of an alternate remedy for the alleged tortious conduct of defendant’s employees. Defendant suggests that since claimants have alleged violations of the Federal Constitution, those causes of action could be brought in Federal Court, thus providing claimants with an alternate remedy. The Court finds this argument persuasive. Although claimants are precluded from asserting claims in state court against the employees in their individual capacities (see Correction Law § 24), such employees may be amenable to suit in Federal Court for violation of federal law (see Baker v Coughlin, 77 F3d 12, 16; see also Ierardi v Sisco, 119 F3d 183). Accordingly, this factor weighs against claimants.
Upon reviewing and balancing all of the factors enumerated in Court of Claims Act

§ 10 (6), the Court finds the following:

a) Claimants' motion for permission to late file a claim for decedent's conscious pain and suffering sounding in negligent supervision is granted, since the Court finds that four of the six factors, including the all-important factor of merit, weigh in claimants' favor;
b) Claimants' motion for permission to late file derivative claims by decedent's mother

and sisters is denied, since the Court finds that two of the six factors, including the all-important factor of merit, weigh against claimants; and in view of the foregoing,

IT IS ORDERED that claimants' motion for permission to late file, Motion No. M-72073, is GRANTED IN PART and DENIED IN PART in accordance with the foregoing. The claim shall include only the cause of action for decedent's conscious pain and suffering sounding in negligent supervision and the caption shall be amended accordingly. Claimants shall file a claim 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 in the Office of the Clerk of the Court. The service and filing of the claim shall be in conformity with all applicable statutes and rules of the Court.

September 25, 2006
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims




[1]. Although all three Notices of Intention were submitted to the Attorney General's office prior to the appointment of Ms. Laureano as the Administratrix of the decedent's estate, a Notice of Intention can be served by “a spouse, a child, or 'any interested person' [citations omitted]” (Loperfido v State of New York, Ct Cl, April 13, 2006, Sise, P.J., Claim No. 110163, Motion Nos. M-70229, CM-70433). As decedent's sister, Ms. Laureano is certainly an 'interested person'; however, her failure to serve any of the Notices within the 90-day period after decedent's death, as required by Court of Claims Act § 10 (3), renders them ineffective to extend the time to file a claim under that section.
[2].Although neither the proposed claim nor the motion affirmation and attached exhibits provide decedent's age or date of birth, defendant alleges that decedent's date of birth was December 17, 1969, according to the Department of Correctional Services public website (Affirmation of C. Cocchiola, ¶ 21). Without claimants having provided any information to the contrary, the Court accepts this allegation as fact.
[3].Although defendant does not address the claim for negligent supervision, it is clearly present in the proposed claim, with allegations of violations of decedent's right to safe custody (proposed claim ¶9), and his right to be free from negligent custodial care (proposed claim ¶14).
[4].As previously noted, although claimants served the claim on the Attorney General's office on October 3, 2005, which was within two years of decedent's death, no claim was ever filed with the Office of the Clerk of the Court, as is required under the Court of Claims Act. Moreover, as the Notices of Intention to file a claim were a nullity, having been filed after more than 90 days had elapsed from decedent's date of death, filing the claim with the Office of the Clerk of the Court on October 3, 2005 would not have sufficed; rather, a motion to file a late claim - such as the instant motion - would have had to have been commenced within the statutory time periods discussed above.
[5].Because April 8, 2006 was a Saturday, claimants would have until the next business day to file this motion (see General Construction Law § 20).
[6].October 8, 2005 was a Saturday and October 10, 2005 was Columbus Day, a legal holiday. As such, claimants had until October 11, 2005, the next business day, to file this motion (see General Construction Law §§ 20, 24).
[7].Although the medical malpractice and wrongful death causes of action are time-barred, if timely interposed, such causes of action would have provided claimants with adequate remedies.