New York State Court of Claims

New York State Court of Claims

FERNANDEZ v. STATE OF NEW YORK, #2007-039-049, Claim No. 109323, Motion Nos. M-73305, CM-73580


Synopsis


Claimant, the owner of an adult care facility, moves the Court for an order pursuant to CPLR 3124 compelling defendant to disclose various documents it withheld on the basis of privilege. Defendant cross moves the Court for an order dismissing the amended claim pursuant to CPLR 3211 and Court of Claims Act §§ 10 and 11 on the grounds that the amended claim sets forth causes of action that were dismissed or that have not been served in a timely manner or pursued within the applicable statute of limitations. To the extent that the amended claim includes allegations related to actions taken before December 5, 2003 and realleges violations of the United States and New York Constitutions, those portions of the amended claim must be stricken to conform with the Court’s (Hard, J.) Decision and Order dated September 12, 2006. However, the Court finds that the claim is timely insofar as it seeks to recover damages for defendant’s alleged tortious interference with claimant’s business relations, negligence and defamation as a result o the February 5, 2004 incident report. Moreover, unlike the circumstances before the Court in Arteaga v State of New York (72 NY2d 212 [1988]), here claimant contends that defendant failed to comply with certain nondiscretionary obligations - that it did not act in compliance with the applicable rules and regulations when conducting its investigation and issuing its inspection reports, resulting in harm to claimant. To the extent that claimant seeks damages for defendant’s alleged failure to comply with certain rules and regulations, the Court is unable to conclude that defendant is immune from suit.

Case Information

UID:
2007-039-049
Claimant(s):
BENITO FERNANDEZ d/b/a BROOKLYN MANOR HOME FOR ADULTS
Claimant short name:
FERNANDEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109323
Motion number(s):
M-73305
Cross-motion number(s):
CM-73580
Judge:
JAMES H. FERREIRA
Claimant’s attorney:
O’Connell and Aronowitz, P.C.
By: Jeffrey J. Sherrin, Esq. Yvonne E. Marciano, Of Counsel
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Michael W. FriedmanAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 21, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant Benito Fernandez is the owner of Brooklyn Manor Home For Adults (hereinafter Brooklyn Manor), an adult care facility. On March 4, 2004, claimant served a notice of intention to file a claim on the Attorney General’s Office following a series of inspections of Brooklyn Manor by the New York State Department of Health, pursuant to Social Services Law § 461-a. The inspections were alleged to have taken place during the period July 2002 through February 2004. During May 2004 the claim was filed. Claimant set forth five causes of action alleging violations of due process under the United States Constitution, 42 USC § 1983 and the New York Constitution, tortious interference with business relations, defamation and negligence. Claimant alleged, among other things, that the inspection reports failed to comply with 18 NYCRR 486.2 because the reports failed to identify each area of operation inspected, whether those areas were in compliance with the regulation and what corrective action, if any, was required to bring the area of operation into compliance. Claimant alleged that the inspection reports were then used to commence unlawful enforcement proceedings, including, among others, the improper denial of renewal of the facility’s operating certificate, the unlawful attempt to remove the facility’s administrator, the illegal suspension of claimant’s operating certificate, the improper appointment of a temporary operator and the illegal attempt to appoint a permanent receiver. Claimant further alleged that the enforcement proceedings were a pretext to divert admissions away from Brooklyn Manor, to deny the facility funding under New York’s Quality Incentive Payment (“QUIP”) program and to financially ruin claimant.

By Decision and Order dated September 12, 2006, the Court (Hard, J.) determined that “claimant . . . failed to establish ‘the wrongs to be of a continuing nature and so interrelated that they could not be separated for purposes of applying time limitations’” [citations omitted] and therefore concluded that “allegations related to actions taken before December 5, 2003 are untimely.” The Court (Hard, J.) also dismissed the first and second causes of action alleging violations of the United States and New York Constitutions, and granted claimant’s request to amend the claim to add incidents which occurred subsequent to the filing of his claim, including two additional inspections on July 28, 2004 and May 23, 2005. On October 11, 2006, claimant served an amended claim on the Attorney General’s Office and, on the following day, he filed the amended claim with the Chief Clerk of the Court of Claims. On December 5, 2006 the parties executed a stipulation agreeing to discontinue the first cause of action in the amended claim. Discovery ensued and claimant now moves the Court for an order pursuant to CPLR 3124 compelling defendant to disclose various documents it withheld on the basis of privilege. Defendant opposes the motion and cross moves the Court for an order dismissing the amended claim pursuant to CPLR 3211 and Court of Claims Act §§ 10 and 11 on the grounds that the amended claim sets forth causes of action that were dismissed or that have not been served in a timely manner or pursued within the applicable statute of limitations.

The Court finds in the first instance that, to the extent the amended claim includes allegations related to actions taken before December 5, 2003 and realleges violations of the United States and New York Constitutions, those portions of the amended claim must be stricken to conform with the Court’s (Hard, J.) Decision and Order dated September 12, 2006. In this regard, the Court notes that the parties agreed to discontinue the first cause of action in the amended claim. Thus, the Court’s analysis shall be confined to allegations of wrongdoing related to the second (tortious interference with prospective business relations), third (defamation) and fourth (negligence) causes of action that occurred after December 5, 2003.

Court of Claims Act §10 provides, in relevant part, that a claim must be “filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim.” In the event a notice of intention is timely served, then “the claim shall be filed and served upon the attorney general within two years after the accrual” of a claim for “injuries to property or for personal injuries caused by the negligence or unintentional tort” of defendant, and “within one year after the accrual” of a claim for “injuries to property or for personal injuries caused by the intentional tort” of defendant (Court of Claims Act §§ 10 [3], [3-b]). “A claimant who fails to file or serve upon the attorney general a claim or to serve upon the attorney general a notice of intention” in accordance with the foregoing provisions “may, nevertheless, in the discretion of the court, be permitted to file such claim at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules” (Court of Claims Act § 10 [6]). It is well settled that “ ‘the requirements of the Court of Claims Act as to the filing of claims must be strictly construed because the question of timeliness of filing is jurisdictional’ ” (Pristell v State of New York, 40 AD3d 1198, 1198 [2007], quoting Roberts v State of New York, 11 AD3d 1000, 1001 [2004]; see also Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]).

Here, claimant served a notice of intention to file a claim on the Attorney General’s Office on March 4, 2004. As previously determined by the Court (Hard, J.), “allegations that occurred prior to December 5, 2003 are untimely as such allegations occurred beyond the 90-day limitation period provided for in Court of Claims Act § 10 (3) and §11.” Moreover, the Court (Hard, J.) determined that claimant failed to establish “the wrongs to be of a continuing nature” (citations omitted). Thus, to the extent that claimant continues to allege wrongdoing prior to December 5, 2003, those occurrences must be stricken from the amended claim. However, since claimant served a notice of intention within 90 days after the accrual of his claim - that being the date of the incident report, or February 5, 2004 - and subsequently filed and served a claim during May 2004, within one year after the accrual of his claim, the Court finds that the claim is timely insofar as it seeks to recover damages for defendant’s alleged tortious interference with claimant’s business relations, negligence and defamation as a result of the February 5, 2004 incident report (see Court of Claims Act §§ 10 [3], [6]).

Defendant contends, however, that the claim is untimely insofar as it seeks relief in connection with the July 28, 2004 and May 23, 2005 inspection reports because each inspection report is a separate occurrence necessitating the timely service of a notice of intention or the timely filing and service of a claim pursuant to Court of Claims Act § 10 in order to confer jurisdiction on the Court. Defendant further contends that since the filing and service requirements of Court of Claims Act § 10 are jurisdictional, the requirements were not waived when the Court (Hard, J.) permitted claimant to amend the claim and allege incidents that occurred subsequent to the filing of his claim, including the July 28, 2004 and May 23, 2005 inspection reports. The Court disagrees.

Defendant seeks, in essence, to challenge the Court’s (Hard, J.) decision to grant claimant’s request to amend the claim to add incidents alleged to have occurred after the filing of the claim and, in particular, inclusion of the July 28, 2004 and May 23, 2005 inspection reports. Defendant’s cross motion is an improper vehicle for making such a challenge. In any event, defendant’s objection to the amendment based upon the filing and service requirements of Court of Claims Act § 10 is without merit. Since the Court (Hard, J.) previously determined that “the amendment . . . simply seeks to add subsequent allegations pertaining to the same conduct alleged in previous inspection reports,” this Court is constrained to find that the foregoing amendment is “deemed to have been interposed at the time the claims in the original pleading were interposed” (CPLR 203 [f]).

Nor does the Appellate Division’s recent decision in Monreal v New York State Dept. of Health (38 AD3d 1118 [2007]) warrant dismissal of the amended claim at this early stage of the proceeding. There, the Court determined, among other things, that “the decision to undertake disciplinary action [by the Office of Professional Medical Conduct] involve[d] the exercise of discretion of a judicial or quasi-judicial nature, [therefore] the challenged actors, i.e., [the chair of the State Board for Professional Medical Conduct] and the named state agencies, are immune from suit” (id. at 1119).

In Arteaga v State of New York, (72 NY2d 212, 216 [1988]), the Court of Appeals distinguished actions receiving only qualified immunity, thereby “shielding the government except when there is bad faith or the action taken is without a reasonable basis,” from those entitled to receive absolute immunity, “where reasonableness or bad faith is irrelevant.” The Court explained that “[t]he question depends not so much on the importance of the actor’s position or its title as on the scope of the delegated discretion and whether the position entails making decisions of a judicial nature - - i.e., decisions requiring the application of governing rules to particular facts, an ‘exercise of reasoned judgment which could typically produce different acceptable results’” (id. at 216-217, quoting Tango v Tulevech, 61 NY2d 34 [1983]). In arriving at a determination, the Court reasoned, in relevant part, that
“[t]here is no question that the officers and employees responsible for filing the misbehavior reports against claimants, conducting the hearings, and confining them before and after the hearing determinations acted entirely within their authority and in compliance with the applicable rules and regulations. The question is whether their actions involved the exercise of discretion of a quasi-judicial nature” (id. at 218).

Unlike the circumstances before the Court in Arteaga, (supra), here claimant contends that defendant failed to comply with certain nondiscretionary obligations - that it did not act “in compliance with the applicable rules and regulations” when conducting its investigation and issuing its inspection reports, resulting in harm to claimant (id.).

For instance, claimant alleges that “[d]espite the statutory and regulatory requirements found in N.Y. Social Services Law § 461-a(2)(c) and 18 N.Y.C.R.R.§ 486.2(i)(1), inspection reports issued by the Department, including the inspection reports received by Claimant, failed to meet the requirements of law, in that they do not include identification of any areas in which the facility meets or exceeds compliance with applicable requirements.

The Legislature has also required the Department to include in an inspection report, ‘directions as may be appropriate as to the manner and time in which compliance with applicable requirements of law or regulations of the Department shall be affected.’ N.Y. Social Services Law § 461-a(2)(c). Accordingly, prior to commencing an enforcement proceeding against an adult home, the Department is required by statute to identify the corrective action the adult home should take, and should determine that such action was not taken and the violation continues.

The Department’s own regulations, with which the Department is required to comply, also imposed the same obligation, stating:
“A written report of inspection shall be sent to the operator, and shall include: the steps which must be taken to correct any violations;18 N.Y.C.R.R. § 486.2(i)(3)” (see Amended Claim, ¶¶ 20, 21 and 22).
Thus, to the extent that claimant seeks money damages for defendant’s alleged failure to comply with certain rules and regulations, the Court is unable to conclude, based on the record before it, that defendant is immune from suit.

In addition to the foregoing, the Court further concludes that it must conduct an in camera review of those documents withheld by defendant on the basis of privilege, as more fully described in defendant’s privilege log. The determination of “whether a particular document is or is not protected is necessarily a fact-specific determination . . . most often requiring in camera review” (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 378 [1991] [citation omitted]).

Accordingly, it is hereby

ORDERED that claimant’s motion to compel discovery is adjourned, without date, pending the Court’s in camera review of those documents identified in defendant’s privilege log; and it is further

ORDERED that defendant shall provide the Court with copies of all documents identified in the privilege log, and defendant shall clearly label each document in a manner that corresponds with the privilege log; and it is further

ORDERED that defendant’s cross motion to dismiss the amended claim is granted in part and denied in part in accordance with the Court’s Decision and Order; and it is further

ORDERED that, within twenty (20) days from the date of the filing of the Court’s Decision and Order, claimant shall file with the Chief Clerk of the Court and serve defendant with an amended claim that is in conformity with this Decision and Order.


December 21, 2007
Albany, New York
HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered:
  1. Notice of Motion to Compel dated May 2, 2007;
  2. Affirmation In Support of Motion to Compel by Jeffrey J. Sherrin, Esq. dated May 2, 2007 with exhibits;
  3. Notice of Cross Motion to Dismiss dated June 14, 2007; and
  4. Affirmation in Opposition to Motion to Compel and In Support of Cross Motion to Dismiss by Michael W. Friedman, AAG dated June 14, 2007 with exhibits.