New York State Court of Claims

New York State Court of Claims

JONES v. THE STATE OF NEW YORK, #2008-045-036, Claim No. 111721, Motion No. M-73916


Synopsis



Case Information

UID:
2008-045-036
Claimant(s):
LAMERRILL JONES
Claimant short name:
JONES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111721
Motion number(s):
M-73916
Cross-motion number(s):

Judge:
GINA M. LOPEZ-SUMMA
Claimant’s attorney:
Tinari, O’Connell, Osborn & Kaufman, LLPBy: Patrick M. O’Connell, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: John M. Shields, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 16, 2008
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered by the court on this motion: Claimant’s Notice of Motion, Claimant’s Affirmation in Support with annexed Exhibits A-E, Defendant’s Affirmation in Opposition with annexed Exhibits A-G, Claimant’s Reply Affirmation and Claimant’s Further Affidavits in Support of the Motion[1]. Claimant alleges that on March 23, 2005 he was with his wife, Cher DeMarco, in the ante partum room 46 D, on floor 12N2 at defendant’s facility, Stony Brook University Hospital, awaiting the birth of their child. At approximately 9:00 p.m. that evening, claimant sat down in a chair next to his wife’s bed which reclines to allow the user to sleep in a lateral position. Claimant claims that when he attempted to recline the chair a portion of the chair collapsed and severed the top of his left pinky. Claimant specified at the hearing that the left side of the chair collapsed as he started to lean back in the chair. He continued that his left hand brushed against an exposed mechanism on the chair which he described as a blade. He stated that the blade amputated the top of his left pinky. He then jumped out of the chair and saw that he had discharged a large amount of blood. He also stated that there was blood on the left arm rest of the chair. He went to the sink in the ante partum room to rinse his hand and then left the room in search of help which was immediately provided. Claimant spent the next few hours in the emergency room. The chair involved in the incident was removed from the ante partum room before claimant returned from the emergency room.

A Hospital Incident Report was filled out concerning the subject incident on March 23, 2005 and a University Police Incident Report was completed the next day. On or about May 19, 2005, a notice of intention to file a claim was served on defendant by claimant. On November 23, 2005, claimant sent a letter to defendant requesting that the chair at issue be preserved for the purposes of inspection and photography. It was not until after the instant motion was filed on August 31, 2007 that defendant informed claimant that it had preserved the chair which allegedly caused claimant’s injury. Claimant and his wife inspected the chair on October 10, 2007, however they both insist that the chair they viewed on that date was not the chair which caused claimant’s injury.

Claimant argues that sanctions are appropriate in this matter since defendant failed to preserve the correct chair and as a result his case is severely prejudiced. Conversely, defendant avers that sanctions are not appropriate since the chair involved in the subject incident was preserved and claimant was provided with an opportunity to inspect and photograph the chair.

At a deposition conducted by defendant on June 8, 2006, claimant described the offending chair as a “pretty big chair” which was “basically silver,” “like steel” with leg rests. Claimant stated that it was the only chair in the ante partum room. Claimant described the side of the chair as having silver pieces and plates. He continued that the side had “visible parts that were in different, in like a diagram form of whatever made the chair work like that.” In his Further Affidavit in Support of the Motion, claimant described the subject chair as “solid pink vinyl or naugahyde, not patterned cloth.” He added that the subject chair had a footrest and reclined manually without any type of electric lever. He stated that the chair he viewed on October 10, 2007 was much bigger and more worn than the chair involved in the incident. He also stated that the chair he viewed did not appear to have any bloodstains on the fabric whereas the last time he saw the chair which caused his injury it had blood on the left side of it. At the November 12, 2008 hearing claimant described the subject chair as a “silvery greyish” chair, “pretty thick and padded,” “somewhat like a recliner someone would have in their house” similar to a “lazy-boy” chair. He described the material covering the chair as a greyish type vinyl, not patterned and not made of cloth. He stated that the arm rests of the chair extended for the length of his arm. The arm rests were also padded however one of the arm rests was ripped and covered with duct tape. He explained that the chair he viewed on October 10, 2007 was different from the chair involved in the accident because the chair involved in the accident was not metal, was not covered in a cloth material and had no designs in the fabric. He further stated that the chair involved in the accident was not pink, was not missing an arm rest, was newer and was bigger than the chair he viewed in October.

At a deposition conducted by defendant on June 8, 2006, claimant’s wife stated that she first noticed the subject chair at approximately 9:00 p.m. when claimant sat down in the chair. She described the chair as having a pink cushion on it with silver handles, “like he said, metal.[2]” She also vividly described the circumstances immediately following claimant’s injury. She stated that she saw claimant fall and then jump up. She then felt her face get wet. She looked and then realized “it was all blood.” She stated that claimant ran to the sink to wash his hand and then he left the room. She continued that “the nurse grabbed him. They brought him back in the room and they ran his hand under water, wrapping it up. One nurse was looking for his finger and the other nurse grabbed him. They got a wheelchair and then he started to walk ahead of them. They grabbed him because they were afraid he was going to faint, I think, from what they said. They put him in the chair and brought him downstairs.” Claimant’s wife stated at her deposition that after the incident she only “glanced” at the chair since she was in bed with monitors attached to her. She stated that eventually a nurse found a piece of claimant’s finger embedded in the chair. She also stated that a man in a suit then entered the room to examine the chair. He called housekeeping to remove the chair from the room. During that period of time, Ms. DeMarco stated that she did not have an opportunity to look at the chair. She could not remember at the time of the deposition whether the chair had wheels on it. She believed that the chair was missing an arm since the person from housekeeping kept asking the nurses if they knew the location of the arm of the chair. In her Further Affidavit in Support of the Motion, Ms. DeMarco concurred verbatim with claimant’s description of the chair as well as the differences between the two chairs presented in claimant’s Further Affidavit in Support of the Motion. She also stated that after claimant screamed, “my finger” and ran over to the bathroom sink, she looked over at the chair and saw that the left arm rest of the chair was no longer on the chair.

At the November 12, 2008 hearing Ms. DeMarco described the subject chair as solid light pink nylon or “fake leather” with gray arms and “cushiony.” She stated that the chair had leg rests covered with the same pink nylon cushioned material as the rest of the chair. The chair did not have any buttons or levers to move it into a reclined position. She testified that after the incident the left arm rest had detached from the body of the chair. At that point the chair was in a reclined position, crooked and leaning to the left. She restated her opinion that the chair she viewed on October 10, 2007 was not the same chair as the one which allegedly caused claimant’s injury. The chair she viewed in October was an older chair covered with a patterned fabric and was made of more metal than the chair involved in claimant’s incident. She stated that the only metal on the chair involved in the incident was on the sides of the chair where the arm rests were. Additionally, the injurious chair had “big fat wheels” which were thicker than the wheels on the chair preserved by defendant. She continued that the arm rest on the chair in her room had a “much fuller cushion” than the arm rest on the chair preserved by defendant. She also testified that there was blood on the seat cushions of the chair and down the left side of the chair in her room. She stated that after the incident a nurse came into her room to look for the severed portion of claimant’s finger. Ms. DeMarco testified that the nurse “was looking through all that metal” as she was attempting to find the finger in the chair. The nurse eventually found a portion of claimant’s finger in a clamp on the left side of the chair.

Defendant called Shahla Fazel to testify at the hearing. Ms. Fazel has been employed by defendant for the past fifteen years as a Registered Nurse in the ante partum and labor and delivery units at Stony Brook University Hospital. Her responsibilities at the hospital included providing care for patients that were experiencing problems with their pregnancies. She stated that she did recall the subject incident even though she was assigned to other patients in the ante partum unit on that date. She stated that sometime during the evening of the incident she observed a man being taken out of a room in a wheelchair by another nurse. The nurse then told Ms. Fazel to take the recliner chair out of that room. Ms. Fazel credibly testified that she saw the recliner chair, removed it from the room and took it into the hallway. She also stated that as she brought the chair into the hallway she noticed some human tissue or skin on the footrest of the chair. She placed the tissue in sterile saline and gave it to another nurse who took it to the emergency room. Ms. Fazel then called for someone from the Distribution Services Department to take the chair away. She explained that the people from Distribution Services Department are responsible for transporting furniture or equipment throughout the hospital. After reviewing photographs of the chair preserved by defendant, Ms. Fazel credibly testified that the chair she removed from the room was the same chair as depicted in the photographs. Although she also stated that different types of chairs were used in the unit, one type being a “lazy boy” type recliner, Ms. Fazel was not asked to give a description of the physical attributes of those other chairs nor was the court presented with any photographic evidence of any other reclining chairs in use in the ante partum unit at the time of claimant’s accident.

At a deposition conducted by claimant on November 15, 2006, Ms. Fazel identified the nurse who told her to take the chair by only her first name, Maureen. At the same deposition Ms. Fazel described the color of the cushions on the chair as pink. She could not remember the color of the arm rests of the chair at that time. She stated that someone from the Distribution Services Department took the chair from the hallway that evening.

Defendant also called Martha Colwell to testify at the hearing. Ms. Colwell testified that at the time of the incident she was employed as the Director of the Distribution Services Department at the Stony Brook University Hospital. She stated that she learned of the subject incident the morning after the accident and that she saw the chair that was alleged to have been involved in the accident that same morning. After reviewing photographs of the chair preserved by defendant, Ms. Colwell credibly testified that the chair in the photographs fairly and accurately showed what the chair looked like on the morning of March 24, 2005. She identified a sign that was on the preserved chair as one that is normally placed on a piece of equipment that is taken out of use. She continued that the sign is usually placed on a chair when the chair is first taken out of service and brought to the Distribution Services Department. She stated that the preserved chair had the sign on it on the morning of March 24, 2005. She stated that another employee, Raveesh Talanki, an employee in the Biomedical Engineering Department removed the chair from the Distribution Services Department that day. She stated that as of the date of the hearing, the preserved chair is the last remaining chair of that type left at the hospital.

At a deposition conducted by claimant on April 18, 2007, Ms. Colwell described the cushions on the chair as pink and the metal as gray. She also stated that the chair was in “used” condition when it was brought down to her department.

Lastly, Raveesh Talanki, a Senior Biomedical Engineer employed at the Stony Brook University Hospital, was also called to testify at the hearing by defendant. He stated that he held that position at the time of claimant’s incident and that his responsibilities included maintaining medical devices. He stated that he learned of claimant’s incident after it occurred, possibly from an incident report but that he did not specifically recall exactly how he found out about the incident. Once he learned of the incident, Mr. Talanki contacted the Distribution Services Department, then personally retrieved the chair from the department and brought it to the Biomedical Unit where he examined the chair’s “functionality.” He stated that he checked the chair to see if it was moving properly. After reviewing photographs of the chair preserved by defendant, Mr. Talanki credibly testified that the chair in the photographs fairly and accurately depicted the chair he retrieved from the Distribution Services Department after claimant’s incident. Mr. Talanki stated that the photographs of the chair admitted into evidence at the November 12, 2008 hearing were photographed by him one year after he retrieved the chair. Moreover, Mr. Talanki identified the preserved chair in the photographs as the chair he examined after the subject incident. After the examination of the chair Mr. Talanki testified that he stored the chair in a locked Biomedical Engineering storage room which was located behind another locked door where the chair remained since the incident. Mr. Talanki described the fabric of the chair as “cushioned with a plastic layer on it.” He continued that it was not a cloth surface but that the surface had some texture to it.

At a deposition conducted by claimant on November 30, 2007, Mr. Talanki remembered that there were blood stains on the side cushion part of the chair. At the deposition and the hearing Mr. Talanki testified that the left arm rest was missing from the preserved chair. Mr. Talanki also stated that the chair at issue was the only chair remaining in the storage room.

This Court has broad discretion in determining sanctions for spoliation of evidence (DeLos Santos v Polanco, 21 AD3d 397 [2d Dept 2005]). Pursuant to CPLR 3126, the moving party has the burden of showing clearly that the responsible party’s actions were willful and contumacious or in bad faith (Scarano v Bribitzer, 56 AD3d 750 [2d Dept 2008]). “The common-law doctrine of spoliation allows for sanctions when a party negligently disposes of evidence; however, the court must consider prejudice resulting from spoliation in determining what type of sanction, if any, is warranted as a matter of fundamental fairness” (id.at 750-751).

Claimant presented the court with differing descriptions of the injurious chair. At his deposition, claimant initially described the chair as appearing “basically silver,” “like steel” with leg rests. He stated that the side of the chair had silver pieces and plates. Claimant then stated in his affidavit that the chair was “solid pink vinyl or naugahyde, not patterned cloth.” Finally, during the hearing, claimant described the subject chair as a “silvery greyish” chair which was not pink, not metal and not missing an arm rest. Claimant also, for the first time at the hearing, gave a detailed description of one of the arm rests of the chair as being ripped and covered with duct tape.

Additionally, claimant declared in his affidavit that the preserved chair was much bigger than the chair involved in the incident. However, at the hearing claimant stated that the chair involved in the incident was bigger than the preserved chair.

These various inconsistent descriptions of the chair render claimant’s statements depicting the chair involved in the accident as generally unreliable.

Claimant’s wife also gave varying descriptions of the chair which caused claimant’s injury. At her deposition, Ms. DeMarco described a chaotic environment surrounding the circumstances of claimant’s injury. She indicated that she only first noticed the subject chair when claimant sat down in the chair and then only glanced at the chair after the incident. She described the chair as having a pink cushion on it with silver handles. She also referred to the chair as metal. She could not remember at the time of the deposition whether the chair had wheels on it. In her affidavit, Ms. DeMarco concurred verbatim with claimant’s description of the chair as well as the differences between the two chairs presented in claimant’s affidavit. At the hearing, claimant’s wife described in detail the wheels on the subject chair as being “big fat wheels” which were thicker than the wheels on the chair preserved by defendant. She stated that the only metal on the chair involved in the incident was on the sides of the chair where the arm rests were. However, during her description of the nurse’s attempt to find claimant’s severed finger in the chair, Ms. DeMarco stated that the nurse “was looking through all that metal” on the chair. She stated that the nurse eventually found a portion of claimant’s finger in a clamp on the left side of the chair. Ms. DeMarco testified that the chair was missing the left arm rest even though claimant described the chair as having the arm rest.

In contrast, Ms. Fazel credibly testified that the preserved chair was the chair she removed from claimant’s wife’s room on the night of the incident. Ms. Colwell also credibly testified that the preserved chair was the chair she viewed the next morning. Finally, Mr. Talanki credibly testified that the preserved chair was the chair he examined after the incident. He also confirmed that he stored the chair in a locked storage room until claimant viewed it in October 2007.

In sum, it is reasonable, given the traumatic events of that evening, that claimant’s recollection of the subject chair would be inaccurate. Similarly, it is understandable that Ms. DeMarco’s description of the chair would also be imprecise.

Thus, given the circumstances of this case and after weighing the credibility of the witnesses the court finds that it is more likely than not that the preserved chair was in fact the chair that was involved in the March 23, 2005 incident.

Therefore, for the foregoing reasons, claimant’s motion is denied.


December 16, 2008
Hauppauge, New York

HON. GINA M. LOPEZ-SUMMA
Judge of the Court of Claims




[1].Although the “Further Affidavits” in Support of the Motion were not filed defendant acknowledged prior receipt of the affidavits at the November 12, 2008 hearing in this matter. Additionally, defendant did not raise any objections regarding the court’s consideration of the affidavits at the hearing.
[2].Ms. DeMarco was referring to claimant’s description of the chair at his deposition. Ms. DeMarco was present for claimant’s deposition, as both depositions took place consecutively on the same date.