New York State Court of Claims

New York State Court of Claims

MURPHY v. THE STATE OF NEW YORK, #2008-037-009, Claim No. NONE, Motion No. M-74244


Synopsis


Motion to file a late claim granted, but only to the extent of permitting Movant to assert a single negligence cause of action.

Case Information

UID:
2008-037-009
Claimant(s):
THEODORE MURPHY
Claimant short name:
MURPHY
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-74244
Cross-motion number(s):

Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Theodore Murphy, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: Gregory P. MillerAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 14, 2008
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following have been read and considered with respect to Movant’s motion to file a late


claim:

1. Notice of motion and supporting affidavit of pro se Movant, Theodore Murphy,

sworn to October 29, 2007, with annexed Exhibits 1-6;

2. Opposing affirmation of Assistant Attorney General Gregory P. Miller dated January

7, 2008.[1]

Movant brings this motion for leave to file and serve a late claim for personal injuries and damages which allegedly occurred in November of 2005 while Movant was incarcerated at Gowanda Correctional Facility (Gowanda) when he began to experience symptoms and subsequently learned that he had contracted Legionnaires’ disease. In the proposed claim annexed to his motion papers, Movant attempts to allege negligence, medical malpractice and constitutional tort causes of action.

Court of Claims Act 10 (6) grants the Court discretion to permit the late filing of a claim upon consideration of many factors including: 1) whether the delay in filing and serving 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 to be meritorious; 5) whether substantial prejudice to the State resulted from the failure to timely file or serve a claim upon the Attorney General; and 6) whether any other remedy is available. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court is afforded considerable discretion in determining whether to permit the late filing of a claim (Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979 [1982]; Ledet v State of New York, 207 AD2d 965 [1994]).

The first factor to be considered by the Court is whether the delay in filing and serving the claim was excusable. Movant alleges that the delay was excusable because he is a layperson who is incarcerated and, thus, has limited ability to confer with counsel. Ignorance of the law and incarceration are not adequate excuses for failure to file and serve a claim within the statutory 90-day period of time (Holland v State of New York, Ct Cl, September 18, 2003, Lack, J., Claim No. None, Motion No. M-66837, UID # 2003-033-022;[2] Matter of Sandlin v State of New York, 294 AD2d 723 [2002], lv dismissed 99 NY2d 589 [2003]; Plate v State of New York, 92 Misc 2d 1033 [1978]). This factor weighs against the granting of Movant’s motion.

The three factors of notice, opportunity to investigate and prejudice are intertwined and may be considered together. Defendant concedes that it had notice of the essential facts. It argues, however, that it did not have an opportunity to investigate because Movant failed to serve a claim or even a notice of intention to file a claim within the statutory time period and that it would be substantially prejudiced if Movant were allowed to file and serve a late claim as it has lost its ability to investigate the claim due to the passage of time, faulty memories and the retirement of some employees. Defendant, however, was in possession of Movant’s medical records, including the records from Erie County Medical Center (ECMC), and was aware of the diagnosis of Legionnaires’ disease by late November or early December of 2005 (Movant’s Exhibit 5). Moreover, the New York State Department of Health was notified and started testing water samples in December of 2005 (Movant’s Exhibit 2). Defendant had notice and ample opportunity to investigate and, thus, will not be unduly prejudiced if Movant is allowed to file and serve a late claim. The three factors of notice, opportunity to investigate and prejudice weigh in favor of granting Movant’s motion.

Movant alleges that he has no other remedy and Defendant agrees. Without commenting on the viability of any other action, however, Movant could have a separate cause of action against ECMC, an Article 78 proceeding in State Supreme Court and, as will be discussed infra, a separate civil rights action pursuant to 42 USC § 1983. None of these actions would lie in the Court of Claims. This factor thus weighs against the granting of Movant’s motion.

The next and often considered the most decisive factor is merit as it would be futile to allow a meritless claim to proceed (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [1977]). In order to establish a meritorious claim, Movant must show that the proposed claim is not patently groundless, frivolous or legally defective, and that there is reason to believe that a valid cause of action exists (id. at 10-11).

In his proposed claim, Movant alleges that the Defendant failed to adequately treat and/or inform him of a serious disease. In a medical malpractice action, the claimant has the burden of proof and must prove (1) a deviation or departure from accepted practice and (2) evidence that such deviation was the proximate cause of the injury or other damage. A cause of action is premised in malpractice when it is the medical treatment, or the lack of it, that is in issue. A claimant must establish that the medical caregiver either did not possess or did not use reasonable care or best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field. The “claimant must [demonstrate] . . . that the physician deviated from accepted medical practice and that the alleged deviation proximately caused his . . . injuries” (Auger v State of New York, 263 AD2d 929, 931 [1999], citing Parker v State of New York, 242 AD2d 785, 786 [1997]). Without such medical proof, no viable claim giving rise to liability on the part of the State can be sustained (Hale v State of New York, 53 AD2d 1025 [1976], lv denied 40 NY2d 804 [1976]). A medical expert’s testimony is necessary to establish, at a minimum, the standard of care (Spensieri v Lasky, 94 NY2d 231 [1999]).

Whether the claim is grounded in negligence or medical malpractice, “[w]here medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is a required element of a prima facie case” (Wells v State of New York, 228 AD2d 581, 582 [1996], lv denied 88 NY2d 814 [1996]; see Duffen v State of New York, 245 AD2d 653, 654 [1997], lv denied 91 NY2d 810 [1998]). It is evident upon a reading of the proposed claim that Movant is attempting to allege that the Defendant failed to promptly diagnose Legionnaires’ disease, failed to timely advise him of this diagnosis, and failed to appropriately treat the Legionnaires’ disease causing pain, discomfort and permanent damage. Movant’s Ambulatory Health Records reveal that he was seen in the Gowanda infirmary within a day of the onset of symptoms, admitted to the infirmary, and transferred to ECMC four days later (Movant’s Exhibit 6). In addition, while Movant alleges that he was not informed of the diagnosis of Legionnaires’ disease until April of 2006, a grievance document (part of Movant’s Exhibit 6), indicates that Movant admitted being advised of this diagnosis in November of 2005. Moreover, nothing in Movant’s medical records or in his self-serving affidavit substantiate any substantial delay in diagnosing Movant, in advising Movant of the diagnosis, or in providing treatment. Without an expert affidavit attesting to the effect, if any, of an alleged delay in notice or diagnosis or treatment, Movant has failed to establish that his proposed claim sounding in medical malpractice or medical negligence has even the appearance of merit (see Jean-Charles v State of New York, Ct Cl, December 17, 2007, Scuccimarra, J., Claim No. None, Motion No. M-73844, UID # 2007-030-582; Matter of Perez v State of New York, 293 AD2d 918 [2002]).

Movant also alleges in the proposed claim that the Defendant was deliberately indifferent to his medical needs and well-being to such a degree that it constituted cruel and unusual punishment in violation of the constitutions of the United States and of the State of New York. Alleged violations of the prohibition against cruel and unusual punishment contained in the Eighth Amendment to the United States Constitution may be brought in a civil rights action pursuant to 42 USC § 1983. Because the State of New York is not a “person” amenable to suit under 42 USC § 1983, no such claim against the State will lie in the Court of Claims (see Will v Michigan Dept. of State Police, 491 US 58 [1989]; Brown v State of New York, 89 NY2d 172 [1996]).

The prohibition against cruel and unusual punishment found in the Eighth Amendment to the United States Constitution is essentially duplicated in the Constitution of the State of New York (Art 1, § 5). A right of action under the State Constitution, however, is a limited and rarely seen remedy (Waxter v State of New York, 6 Misc 3d 1035 (A) [2005], affd 33 AD3d 1180 [2006]). To determine if a State Constitutional claim is properly brought in the Court of Claims, the Court must consider whether: (1) the applicable constitutional provision is self-executing; (2) monetary damage remedies further the purpose of the underlying constitutional provisions and assure its effectiveness; (3) the provisions are such that they impose a clearly defined duty on the State officers and/or employees; (4) declaratory and injunctive relief is inadequate; and (5) money damages necessarily deter governmental conduct and make the claimant whole (Brown v State of New York, 89 NY2d 172 [1996]). Constitutional provisions in New York are presumptively self-executing (id. at 186). A violation of every self-executing provision, however, does not always support a claim for damages. Only where it is necessary to ensure the effectiveness and promote the purposes of the allegedly violated provision will a constitutional tort be implied (id. at 191). At least one Court of Claims decision has held that New York State’s constitutional prohibition against cruel and unusual punishment meets the criteria set forth in Brown v State of New York, supra, for permitting a constitutional tort claim for monetary damages in the Court of Claims where there is a deliberately indifferent response by prison officials to an inmate’s medical needs (see De La Rosa v State of New York, 173 Misc 2d 1007 [1997]). While Movant generally alleges deliberate indifference and “reckless and callous disregard” for his health, these self-serving allegations are belied by the medical records. Here, the Defendant’s actions of seeing Movant within a day of the onset of symptoms, admitting Movant to the infirmary, and transporting him to ECMC four days later can hardly be characterized as indifferent, let alone deliberate. Moreover, the documents annexed to Movant’s motion papers indicate that there has not been another case of Legionnaires’ disease at Gowanda since 2002 and that Gowanda performed a heat and flush to 160 degrees every six months. Once again, nothing in these actions can be characterized as deliberate indifference (see D’Aprice v State of New York, Ct Cl, March 16, 2001, Corbett, J., Claim Nos. 99693, 102068, Motion Nos. M-61151, M-61424, CM-61323, CM-61678, UID # 2001-005-505). Finally, a recognition of a state constitutional tort claim herein is neither necessary nor appropriate to ensure Movant’s rights because he has an alternative remedy in the form of a common law negligence claim (see Augat v State of New York, 244 AD2d 835 [1997], lv denied 91 NY2d 814 [1998]). Accordingly, Movant has failed to establish even the mere appearance of merit to a proposed constitutional tort cause of action under the constitutions of the United States or the State of New York.

It does not necessarily follow that Movant is without a remedy in the Court of Claims. In paragraphs 3, 4 and 6 of the proposed claim, Movant alleges that the Defendant negligently failed to maintain a safe water supply causing him to be infected with the bacteria which causes Legionnaires’ disease. Movant’s medical records (Movant’s Exhibit 6) confirm that Movant contracted Legionnaires’ disease while incarcerated at Gowanda, and other documents Movant obtained through the Freedom of Information Act (Movant’s Exhibit 2) show that the water supply at Gowanda tested positive for Legionella in December of 2005, and that another inmate contracted Legionnaires’ disease at Gowanda in 2002. Movant alleges that it was reasonably foreseeable that another inmate would eventually contract this disease and that the Defendant should have better protected its water supply after the 2002 incident. These allegations are sufficient to at least allege a negligence cause of action which is neither patently groundless nor frivolous (Matter of Santana v New York State Thruway Auth., supra; Rodriquez v State of New York, Ct Cl, May 15, 2007, Collins, J., Claim No. None, Motion No. M-72995, UID # 2007-015-189).

On balance, the Court concludes that the statutory factors favor Movant’s motion and that it would be a proper exercise of its discretion to allow Movant to file and serve a late claim alleging a single cause of action sounding in common law negligence. Accordingly, it is hereby

ORDERED, that Movant’s motion M-74244 is granted, but only to the extent of permitting Movant to file and serve a late claim alleging a single negligence cause of action; and it is further

ORDERED, that the new negligence claim be filed and served in accordance

with the requirements of §§ 10, 11 and 11-a of the Court of Claims Act within forty-five (45) days of the filing of this decision and order.



March 14, 2008
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims




[1]. Assistant Attorney General Miller refers in his affirmation to an unredacted copy of a document annexed as Exhibit A for the Court’s in camera inspection. This document was not annexed to his affirmation as filed, but was provided to the Court by courtesy copy of his opposing papers.
[2]. This and other unreported Court of Claims decisions may be found on the Court’s website at www.nyscourtofclaims.state.ny.us.