New York State Court of Claims

New York State Court of Claims

FRYE v. THE STATE OF NEW YORK, #2008-042-509, Claim No. NONE, Motion No. M-74392


Synopsis


This motion is brought before the court by claimant, individually and as parent and natural guardian of an infant, for permission to file a late claim pursuant to Court of Claims Act Section 10 (6). The court finds that claimant has failed to sufficiently meet the statutory criteria for the late filing of a claim and therefore denies claimant’s motion to file a late claim.

Case Information

UID:
2008-042-509
Claimant(s):
In the Matter of the Claims of MICHELE FRYE,
Individually and as Parent and Natural Guardian ofAMY LUCKETTE, an infant
Claimant short name:
FRYE
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-74392
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
CHRISTINA CAGNINA, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 2, 2008
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This matter comes before the court on a motion by claimant, individually and as parent and natural guardian of an infant, for permission to file a late claim, pursuant to Court of Claims Act § 10 (6). The motion is opposed by the state. The court has considered the following papers:
1. Notice of Motion, filed January 7, 2008
2. Affidavit of Christina Cagnina, Esq., sworn to October 24, 2007
3. Exhibits A - B, annexed to the moving papers
4. Opposition affirmation of Joel L. Marmelstein, Esq., dated February 25, 2008

______________________________________

The relevant underlying facts, as set forth in the moving papers and proposed claim are not in dispute. The “infant” Amy Luckette was born on December 26, 1989. On June 20, 2007 while Amy Luckette was alone at her residence, she was attacked by Ronald D. Messinger, a mentally handicapped person under the care and supervision of Liberty Resources, Inc. It is alleged that Amy Luckette sustained both physical injuries and emotional trauma in this attack. Claimant alleges that Messinger’s care with Liberty Resources, Inc. was contracted for by the New York State Office of Mental Retardation and Developmental Disabilities (hereinafter referred to as “OMRDD”).

This motion, seeking permission to file a late claim, was not filed until January 7, 2008 (though the attorney’s supporting affidavit was sworn to on October 24, 2007 and the proposed claim was verified on October 9, 2007). The named claimant is “Michele Frye, individually and as parent and natural guardian of Amy Luckette, an infant”. Claimant Michele Frye seeks to recover damages for the infant and recover personally under a derivative claim.

A review of the facts demonstrates that while Amy Luckette was an infant at the time of the alleged incident on June 20, 2007 she was eighteen years of age at the time of the filing of this motion. Nevertheless, as an infant at the time of the incident she is accorded protection under the Court of Claims Act:

[p]ursuant to the Court of Claims Act, § 10 (5), a claim may be presented against the State within two years after the infant attains majority, without permission of the Court.


(Bucchan/Mitchell v State of New York, UID No. 2002-009-022, Claim No. 105241, Motion Nos. M-64553 and CM-64715, May 22, 2002, Midey, J.; Blatt v State of New York, 19 Misc 2d 3; Russo v State of New York, UID No. 2007-009-031, Claim No. NONE, Motion Nos. M-72800 and M-73403, October 1, 2007, Midey, J.).

As was noted by the court in Moore v State of New York, UID No. 2002-015-277, Claim No. NONE, Motion No. M-65101, August 2, 2002, Collins, J.:

[i]t is well established that consistent with Article III § 19 of the New York State Constitution and section 10 (5) of the Court of Claims Act a person under a legal disability at the time of accrual of his or her tort claim may present a claim “within two years after such disability is removed.” It has thus been determined that in cases involving a disability such as infancy permission to file a late claim on behalf of the infant is unnecessary provided the filing is made no later than two years following the removal of the disability (see, Boland v State of New York, 30 NY2d 337; Leibowitz v State of New York, 82 Misc 2d 424; Weber v State of New York, 267 AD 325).


Inasmuch as the presentation of a claim by Amy Luckette would still be timely, this motion, as it applies to a claim on behalf of Amy Luckette, is denied as unnecessary.

However, the disability of infancy does not inure to the benefit of the mother, and thus the motion for leave to file a late claim must be considered with regard to the parent’s derivative claim (Blatt v State of New York, 19 Misc 2d 3, 4).

Court of Claims Act § 10 (6) provides, in relevant part, that:

[i]n determining whether to permit the [late] filing of a claim . . .,

the court shall consider, among other factors, whether the delay

in filing the claim was excusable; whether the state had notice of
the essential facts constituting the claim; whether the state had

an opportunity to investigate the circumstances underlying the

claim; whether the claim appears to be meritorious; 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 whether the claimant

has any other available remedy.


The presence or absence of any one factor is not dispositive in the court’s consideration of a late claim motion (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979; Rice v State of New York, UID No. 2006-028-598, Claim No. NONE, Motion No. M-71150, October 18, 2006, Sise, P.J.). Additionally, the court is afforded broad discretion in its determination and consideration of the statutory factors. Matter of Gonzalez v State of New York, 299 AD2d 675; Doe v State of New York, UID No. 2004-028-512, Claim No. NONE, Motion No. M-67159, March 10, 2004, Sise, P.J.

EXCUSABLE DELAY
Claimant Michele Frye’s proffered excuse, as offered by her attorney, is that claimant did not become aware that Liberty Resources, Inc. was a contractor with the State of New York until receipt of a letter on September 18, 2007. Counsel for claimant states that she did not review this letter until late in the day on September 18, 2007 and was unable, on such short notice, to timely file the claim. Nevertheless, this motion was not filed until almost four months after counsel became aware of the alleged involvement of the defendant.

Under the circumstances, while the failure to timely file the claim might be excusable, claimant’s delay of almost four months after learning of defendant’s involvement is unexcused and unexplained.

NOTICE, OPPORTUNITY TO INVESTIGATE AND PREJUDICE
There is no evidence whatsoever that the defendant had any knowledge of the incident or any opportunity to investigate the incident. In the absence of notice and opportunity to timely investigate, the state is prejudiced under the facts of the incident.

A consideration of these three factors does not favor the claimant.

MERITORIOUS CLAIM
This factor is often considered the most decisive, since “it would be a futile gesture to permit a claimant to file a claim which is legally defective and thus subject it to immediate dismissal” (Terrell v Green Haven Correctional Facility, Ct Cl, June 14, 1977, Rossetti, J.; see Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 10).

The claimant seeks to hold the defendant State of New York liable for the alleged negligent acts of the contractor. Specifically, the proposed claim makes the following statements in this regard:

Defendants New York State and the NYS Office of Mental Retardation and Developmental Disabilities contracted or associated with the Liberty Resources for the care of said mentally challenged adult are responsible for the acts and omissions of the other Defendants who were acting as their agents.[1]


This incident and Amy Luckette’s injuries were caused by the wrongful, careless and negligent acts and omissions of New York State, the NYS Office of Mental Retardation and Developmental Disabilities, and its agents, servants, or employees, who, acting in the scope of their employment, knew or should have known that the person in their care was violent and prone to acts of physical aggression at the time; such acts and resulting injuries to Amy Luckette therefore being foreseeable.


Defendant points out that the only affidavit submitted in support of the motion is an affidavit by counsel, who would have no personal knowledge of the incident. Counsel for defendant also asserts that the claim lacks any specificity, as required by statute, with regard to the precise acts of negligence on the part of defendant - that mere conclusory and general allegations are inadequate. Furthermore, defendant argues that generally one who retains an independent contractor is not liable for the negligent acts of the independent contractor.

In the case at hand, the negligence is sufficiently stated for purposes of this motion. While the attorney’s affidavit is made by one having no personal knowledge of the incident, it is accompanied by the proposed claim, verified by the claimant. Lastly, while defendant may be correct as to the general principles of law with regard to independent contractors, there is insufficient proof before the court for the court to draw any conclusions as to the exact nature of the contractual relationship, if any, between Liberty Resources, Inc. and the defendant.

While there may be questions as to the ultimate merit of this proposed claim, such claim does appear, at this stage, to state a meritorious cause of action. The court is mindful that “[a] movant need only establish that the proposed claim is not patently groundless, frivolous or legally defective and there is reasonable cause to believe that a valid cause of action exists” (Papetti v State of New York, UID No. 2005-033-154, Claim No. NONE, Motion No. M-70315, December 16, 2005, Lack, J.). Since, at the very least, there is reasonable cause to believe that a meritorious claim exists, the court finds that this factor favors the claimant.

ALTERNATIVE REMEDY
As defendant argues, clearly claimant does have an alternative remedy: an action directly against Liberty Resources, Inc.

This factor does not favor claimant.

Having weighed all of the statutory factors, the court finds that the claimant has failed to sufficiently meet the statutory criteria for the late filing of a claim (see Jerrett v State of New York, 166 AD2d 907). Claimant Michele Frye’s motion for permission to serve and file a late claim is denied.

Accordingly, it is:

ORDERED that this motion is denied as unnecessary, with regard to the late claim application submitted on behalf of Amy Luckette; and it is further

ORDERED that this motion is denied without prejudice insofar as this motion seeks permission for the late service and filing of a derivative claim, or any other individual claim, on behalf of Michele Frye.



May 2, 2008
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims




[1]. There is in fact only one named defendant, The State of New York.