New York State Court of Claims

New York State Court of Claims

BRAGA v. THE STATE OF NEW YORK, #2008-044-592, Claim No. 115021, Motion Nos. M-75282, CM-75359


Synopsis


Court grants motion for permission to late file claim alleging causes of action for wrongful death, medical malpractice and negligence, but denies permission regarding causes of action for constitutional tort and negligent hiring and retention. Court grants defendant’s motion to dismiss previously filed, untimely claim arising out of same circumstances.

Case Information

UID:
2008-044-592
Claimant(s):
JOHN WAYNE BRAGA, Individually and as Administratrix of the Estate of WAYNE BRAGA
1 1. The Court was advised that during the pendency of these motions, Laura Braga, Administratrix of the Estate of Wayne Brage, died. John Wayne Braga has been issued Limited Letters of Administration, and requests that he be substituted as claimant in this claim. Defendant has no objection, and the caption has been amended accordingly.
Claimant short name:
BRAGA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK2 2. The Court has, sua sponte, amended the caption to reflect the State of New York as the sole proper defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115021
Motion number(s):
M-75282
Cross-motion number(s):
CM-75359
Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
STOLL, GLICKMAN & BELLINABY: Andrew B. Stoll, Esq., of counsel
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 5, 2008
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Laura Braga, individually and as administratrix of the estate of her brother (decedent), filed Claim No. 115021, inter alia, to recover for decedent’s death, which occurred on December 11, 2006, while he was in the custody of the Department of Correctional Services (DOCS) and incarcerated at Woodbourne Correctional Facility (Woodbourne). Claim No. 115021 alleges causes of action against defendant State of New York (defendant), Raymond J. Cunningham, Woodbourne’s Superintendent, and Mervat Makram, Woodbourne’s Director of Facility Health Services. Defendant answered and asserted several affirmative defenses,[3] including lack of both subject matter and personal jurisdiction based upon the untimely service of the notice of intention and upon the untimely service and filing of Claim No. 115021. Apparently recognizing that the notice of intention and claim may be untimely, claimant moves for permission to file a late claim. Defendant opposes the motion and cross-moves to dismiss Claim No. 115021. Claimant replies.

As it may be potentially dispositive of the existing claim between the parties, the Court will initially address defendant’s cross motion to dismiss Claim No. 115021. In order to be timely, a claim asserting a cause of action for wrongful death must be filed and served, or a notice of intention must be served, within 90 days after appointment of the executor or administrator of the estate (Court of Claims Act § 10 [2]). If a notice of intention is timely served, a claim must thereafter be filed and served within two years of the decedent’s death (Court of Claims Act § 10 [2]).

On July 18, 2007, Ms. Braga was granted Limited Letters of Administration for decedent’s estate. On October 17, 2007, she served a notice of intention to file a claim on the Office of the Attorney General, and on March 25, 2008, she filed Claim No. 115021. Clearly, Ms. Braga served the notice of intention more than 90 days after her appointment as administratrix. Accordingly, both the notice of intention and Claim No. 115021 are untimely with regard to the wrongful death cause of action. Claim No. 115021 also contains causes of action for constitutional tort, medical malpractice, negligence, negligent hiring and retention, and vicarious liability. Those causes of action accrued, at the latest, on December 11, 2006. Because the notice of intention was served, and Claim No. 115021 was served and filed more than 90 days thereafter, both are therefore untimely with respect to those causes of action as well (Court of Claims Act § 10 [3]). Defendant’s cross motion is granted and Claim No. 115021 is dismissed.

The Court must therefore address claimant’s motion for leave to file and serve a late claim. The proposed claim purports to set forth causes of action for a constitutional tort,[4] medical malpractice, negligence in failing to obtain medical care for the decedent, negligent hiring and retention of certain employees, and wrongful death.[5] However, as defendant correctly notes, Woodbourne’s Superintendent and Director of Facility Health Services are not proper defendants in the Court of Claims (Court of Claims Act §§ 9, 11 [a] [ii]). Accordingly, to the extent that claimant’s motion seeks permission to file and serve a late claim containing causes of action against these individuals, whether in their individual or official capacities, it is denied.

A motion seeking permission to file and serve a late claim must be brought within the statute of limitations period attributable to the underlying cause of action (Court of Claims Act

§ 10 [6]). The statute of limitations for a wrongful death claim is two years from the date of the decedent’s death (EPTL 5-4.1 [1]). The claim for wrongful death accrued on December 11, 2006, and this motion served on July 9, 2008, and amended to reflect the substitution of claimant as personal representative of decedent’s estate, is therefore timely with respect to this cause of action.

The statute of limitations applicable to a cause of action for medical malpractice is 2½ years (CPLR 214-a). Claimant alleges that defendant was negligent in its medical treatment of decedent by failing to comply with acceptable standards. However, claimant does not indicate the specific time period during which this conduct allegedly took place. This motion is therefore timely only with respect to conduct which occurred on or after January 9, 2006.

The applicable statute of limitations, both for negligence and for constitutional torts, is three years from the date of accrual (see CPLR 214 [4]; Brown v State of New York, 89 NY2d 172 [1996]). Claimant alleges that defendant was negligent in failing to provide prompt and competent emergency care, and that said failure caused decedent’s death. Further, claimant asserts that defendant was negligent in hiring and retaining certain employees, based upon their allegedly “bad dispositions” and negligent treatment of inmates. It is unclear exactly what time frame defendant’s conduct which forms the basis for claimant’s cause of action for negligence and constitutional torts took place. Accordingly, this motion is timely only with respect to conduct which occurred on or after July 9, 2005.

Having determined that the motion is timely with regard to the proposed causes of action for wrongful death, medical malpractice, negligence, and a constitutional tort, the Court turns to a consideration of the merits of the motion itself. The factors that the Court must consider under Court of Claims Act § 10 (6) 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.

Claimant acknowledges that a notice of intention to file a claim was prepared within two months of decedent’s death, but states that due to law office failure, it was erroneously mailed to the New York City Comptroller rather than the Attorney General. A second notice of intention to file a claim was hand-delivered to the Office of the Attorney General on October 17, 2007, admittedly 91 days after Ms. Braga’s appointment as administratrix. Counsel for claimant attributes the one-day delay to a miscalculation of the time period in which to file a notice of intention. Because law office failure is not an adequate excuse for failing to comply with the requirements of Court of Claims Act §§ 10 and 11 (see Nyberg v State of New York, 154 Misc 2d 199, 200 [1992]; see also Osho v State of New York, Ct Cl, Mar. 8, 2004, Sise, J., Claim No. None, Motion No. M-67743 [UID # 2004-028-509]), the Court finds that the delay, while de minimis, was not excusable, and this factor weighs against claimant.

The three factors of notice of the essential facts, an opportunity to investigate and the lack of substantial prejudice are frequently analyzed together since they involve similar considerations. Defendant contends that claimant has not provided any documentation in the form of medical records or investigative reports which would assist the Court in determining whether the State conducted an investigation of the circumstances surrounding decedent’s death with respect to a civil lawsuit. Claimant notes that although the Commission of Correction began an investigation, the file was closed without a final report being issued. Further, claimant contends that decedent’s medical records provided by defendant “completely omit[ted] any records related to the incident complained of” (Reply Affirmation of Andrew B. Stoll, Esq., dated August 18, 2008, ¶ 4 [emphasis in original]).

It is undisputed that decedent was an inmate in DOCS custody at the time of his death. Pursuant to Correction Law § 47 (1) (a), the Medical Review Board of the Commission of Correction was required to conduct an investigation into decedent’s death. Ms. Braga, as personal representative of decedent’s estate, requested a copy of the Commission of Correction’s final report on decedent’s death, pursuant to the Freedom of Information Law. Her request was denied by that Commission based upon the fact “that both the Commission [of Correction] and the Medical Review Board administratively closed the . . . investigation without issuing a final report” (Claimant’s Motion for Leave to File Late Claim, Exhibit C).

Clearly, the Commission of Correction and the Medical Review Board did investigate this matter to some extent, notwithstanding the absence of a final report. Further, defendant was obviously aware of decedent’s death, and is in possession of decedent’s complete Ambulatory Health Records, specifically including those records concerning the period of time immediately prior to his death. Accordingly, the Court finds that defendant had both notice of and an opportunity to thoroughly investigate this matter. Moreover, defendant has set forth no evidence which would support an inference that the State would be prejudiced in defending this claim. Thus, the three factors of notice, an opportunity to investigate and a lack of prejudice to the defendant all weigh in claimant’s favor.

Another factor to be considered is whether claimant has any other available remedy. Claimant is apparently pursuing an action based upon the same incident in Federal Court. Nevertheless, as defendant appropriately concedes, the Court of Claims is the proper forum for this action against the State. This factor also weighs in favor of claimant.

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 [1977]). In order to establish a meritorious claim, a claimant must demonstrate 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). There is a heavier burden on a party moving for permission to file a late claim than on a claimant who has complied with the provisions of the Court of Claims Act (see id. at 11-12; see also Nyberg v State of New York, supra).

With respect to the alleged violation of the State Constitution, the Court of Appeals recognized the existence of a constitutional tort as a “narrow remedy” to assure a constitutional provision’s effectiveness and to further its purpose (see Brown v State of New York, supra). However, it is not necessary to recognize a constitutional tort in situations where a claimant has adequate, alternate remedies in common-law tort (see Martinez v City of Schenectady, 97 NY2d 78 [2001]; Augat v State of New York, 244 AD2d 835, 837 [1997], lv denied 91 NY2d 814 [1998]). Given that claimant has adequate remedies for defendant’s alleged conduct, including the proposed causes of action for wrongful death, medical malpractice, and negligence, this Court need not, and will not, recognize a constitutional tort claim under the State Constitution in this matter (see Martinez v City of Schenectady, supra; Bullard v State of New York, 307 AD2d 676 [2003]). Consequently, claimant’s proposed cause of action for a constitutional tort lacks merit, and to the extent that claimant is seeking permission to file and serve a late claim for that cause of action, claimant’s motion is denied.

Claimant alleges that decedent had been diagnosed with sleep apnea, and shortly before his death had been utilizing a machine to assist with his breathing while he slept. Based upon inmate accounts of the incident, claimant asserts that shortly before the 11:00 p.m. count, Correction Officers Mahnken and Clark observed defendant to be turning blue, but failed to address the situation.[6] Other inmates apparently attempted to arouse decedent, and when they were unsuccessful, they notified the correction officers then on duty. Claimant alleges that Nurses O’Keefe and Alberti arrived approximately 20 minutes later, without a stretcher, first aid kit or any resuscitative equipment. Further delays apparently then ensued when the inmates carrying decedent to the clinic were required to pass through other dormitories.[7] The ambulance was apparently also delayed by “a gate clearance issue,” resulting in an additional 40-minute delay in the arrival of paramedics.

It is well settled that the State owes a duty to provide its inmates with reasonable and adequate medical care and treatment while incarcerated (Rivers v State of New York, 159 AD2d 788 [1990], lv denied 76 NY2d 701 [1990]). There is a subtle distinction between medical malpractice and medical negligence. The Court of Appeals has recognized that although a medical provider “in a general sense is always furnishing medical care to patients . . . not every act of negligence toward a patient would be medical malpractice” (Bleiler v Bodnar, 65 NY2d 65, 73 [1985]. When the allegedly wrongful conduct “constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment,” the cause of action is for medical malpractice rather than negligence (id. at 72; see Scott v Uljanov, 74 NY2d 673 [1989]). “By contrast, when ‘the gravamen of the complaint is not negligence in furnishing medical treatment to a patient, but the [provider’s] failure in fulfilling a different duty,’ the claim sounds in negligence” (Weiner v Lenox Hill Hosp., 88 NY2d 784, 788 [1996] quoting Bleiler v Bodnar, supra at 73).

In order to establish the appearance of merit in a medical malpractice claim, claimant must show that defendant departed from the accepted standard of medical care, and that said departure was a proximate cause of the injury (Mullally v State of New York, 289 AD2d 308 [2001]). General allegations of medical malpractice which are not supported by competent evidence are insufficient (Torns v Samaritan Hosp., 305 AD2d 965, 966 [2003]), and “expert medical evidence clearly is required to demonstrate that the diagnosis and treatment rendered to claimant by state personnel [or the lack thereof] departed from accepted medical practices and standards” (Matter of Perez v State of New York, 293 AD2d 918, 919 [2002]).

In support of the proposed claim, claimant has submitted the report from an autopsy examination which was conducted by Lone Thanning, a forensic pathologist. Thanning noted that the examination was a “second, full, unlimited autopsy examination of the embalmed remains of [decedent]” (Claimant’s Motion for Leave to File Late Claim, Exhibit B).[8] Based upon the external examination of decedent, Thanning specifically stated that “[n]o evidence of resuscitative intervention is noted anywhere on the body, including venipuncture wounds and resuscitation defibrillator pad marks” (id.). Thanning opined that the manner of death was natural, with the immediate cause being “ACUTE CARDIAC FAILURE [d]ue [t]o [the] PROXIMATE CAUSE [of] OCCLUSIVE CORONARY ATHEROSCLEROSIS AND HYPERTENSIVE CARDIOMYOPATHY [and also] [d]ue [t]o [the] ASSOCIATED CONDITION[ ] [of] INSTITUTIONAL DEATH WITH NO RESUSCITATIVE INTERVENTION.”

Notwithstanding that Dr. Thanning’s autopsy report is not affirmed under the penalty of perjury, because Dr. Thanning is a physician – and therefore a person authorized to submit an affirmation in lieu of an affidavit pursuant to CPLR 2106 – the Court will treat the autopsy report as being properly affirmed (see Levola v State of New York, Ct Cl, Schaewe, J., July 30, 2008, Claim No. None, Motion No. M-73066; see also Talley v State of New York, Ct Cl, May 21, 2008, Moriarty III, J., Claim No. 108791, Motion No. M-74178 [UID # 2008-037-022]; Gilmore v State of New York, Ct Cl, May 21, 2008, Moriarty III, J., Claim No. 108790, Motion No. M-74179 [UID # 2008-037-021]).[9] Based upon this second autopsy report, the Court finds that claimant has established that this claim appears to be meritorious with respect to the allegations of medical malpractice concerning the failure to provide resuscitative intervention. Accordingly, this crucial factor of merit also weighs in claimant’s favor on the cause of action for medical malpractice.

With respect to claimant’s cause of action for negligence, claimant has alleged that correction officers were on notice that decedent had difficulty breathing while he was sleeping. Despite this knowledge, claimant alleges that they deliberately failed to obtain medical treatment for him even though he was turning blue. Although the Court recognizes that claimant may be required to provide an expert medical opinion in order to establish that defendant’s alleged negligence caused or contributed to the injuries at trial (see Wood v State of New York, 45 AD3d 1198 [2007]; Tatta v State of New York, 19 AD3d 817, 818 [2005], lv denied 5 NY3d 712 [2005]; Wells v State of New York, 228 AD2d 581, 582 [1996], lv denied 88 NY2d 814 [1996]), the Court may infer that the correction officers’ conduct may have also been a substantial factor in causing decedent’s death. Accordingly, the Court finds that claimant’s cause of action for negligence has the appearance of merit.

A personal representative may commence an action on behalf of the estate of a decedent who is survived by distributees to recover damages for a wrongful act or negligence which caused the decedent’s death (EPTL 5-4.1 [1]). As previously set forth in this Decision and Order, claimant has sufficiently stated causes of action for medical malpractice and negligence,

based upon defendant’s allegedly wrongful conduct, which allegedly caused decedent’s death. The proposed cause of action for wrongful death thus also has the appearance of merit.

However, the proposed causes of action for negligent hiring and retention of certain employees (presumably Correction Officers Mahnken and Clark) lacks merit. Defendant does not dispute that the allegedly wrongful conduct of the correction officers (and perhaps the conduct of the nurses as well) occurred during the course of their employment with the State of New York. Under the doctrine of respondeat superior, this conduct may provide the basis for defendant’s potential liability (Rossetti v Board of Educ. of Schalmont Cent. School Dist., 277 AD2d 668 [2000]). For this reason, “no claim may proceed against [the State as] employer for negligent hiring” (id. at 670; see also Peterec v State of New York, Ct Cl, Mar. 31, 2008, Schaewe, J., Claim Nos. 112041, 112042, 112043, Motion No. M-72642 [UID # 2008-044-527]).

The Court finds that five of the six statutory factors, including the most crucial factor of merit, weigh in claimant’s favor with respect to the proposed causes of action for wrongful death, medical malpractice, and negligence. Claimant’s motion for permission to late file and serve a claim is therefore granted to that extent. Claimant shall file a claim against the State of New York as the sole proper defendant, containing the information required by Court of Claims Act

§ 11 (b), and setting forth the aforementioned causes of action. Claimant shall file said claim and serve a copy of it upon the Attorney General no later than December 11, 2008, that being within two years of decedent’s death (Court of Claims Act § 10 [2]). The service and filing of the claim shall be pursuant to the strict requirements of the Court of Claims Act.

Defendant’s cross motion is granted, and Claim No. 115021 is hereby dismissed.




December 5, 2008
Binghamton, New York

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


The following papers were read on claimant’s motion and defendant’s cross motion:

1) Notice of Motion filed on July 14, 2008; Affirmation of Andrew B. Stoll, Esq., dated July 8, 2008, and attached Exhibits A through G.

2) Notice of Cross Motion filed on August 11, 2008; Affirmation in Opposition of James E. Shoemaker, Assistant Attorney General, dated August 6, 2008.


3) Affirmation in Opposition of Andrew B. Stoll, Esq., dated August 18, 2008.

Filed papers: Claim filed on March 25, 2008; Verified Answer filed on May 7, 2008; Amended Verified Answer filed on May 15, 2008.



[3]. Defendant subsequently served and filed an amended answer asserting an additional ninth affirmative defense.
[4]. Specifically, claimant alleges violations of the NY Constitution, article I, §§ 5 and 6, based upon defendant’s alleged indifference to the decedent’s medical needs.

[5]. The proposed claim also contains a cause of action for vicarious liability. Because defendant does not
dispute that the allegedly wrongful conduct in this matter of any of its employees took place within his or her scope of employment with the State, defendant’s potential liability is based upon the doctrine of respondeat superior (Rossetti v Board of Educ. of Schalmont Cent. School Dist., 277 AD2d 668 [2000]). The separately stated cause of action for vicarious liability is therefore superfluous and should not be included in the claim.
[6]. Allegedly, the work shift for Correction Officers Mahnken and Clark was almost over.
[7]. Apparently, certain doors on a more direct route to the clinic were locked, and the keys were missing.
[8]. An initial autopsy was apparently performed on behalf of the Sullivan County Coroner. However, a copy of the first autopsy report has not been submitted to the Court.
[9]. Even if the Court did not treat the report as constituting an expert affirmation, the report itself would be sufficient to establish merit (see e.g. Matter of Caracci v State of New York, 178 AD2d 876 [1991]).