New York State Court of Claims

New York State Court of Claims

MASO v. THE STATE OF NEW YORK, #2009-029-008, Claim No. 115673, Motion Nos. M-75540, CM-75676


Defendant failed to meet its burden, on this pre-answer dismissal motion, to show that the claim was untimely. Involuntary commitment to psychiatric hospital by state judge requires finding that claimant was under a disability at that time, but it is not clear whether she was under a disability when the claim accrued, or when the disability was removed. Additionally, claimant’s mother did not show that claimant was incapable of protecting her rights and appointment of a guardian ad litem was not warranted.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant’s attorney:
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Vincent M. Cascio, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 6, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


On this motion, Digna Caraballo moves for an order appointing her Guardian Ad Litem for her daughter, Antonia Maso, for the purpose of litigating this claim against the State of New York. Defendant opposes the motion and cross-moves, pre-answer, for an order dismissing the claim for lack of jurisdiction.

The claim, filed August 11, 2008, alleges as follows:

1. That on August 9, 2001, Antonia Maso, an inmate in the State correctional system, was committed to Central New York Psychiatric Center upon the finding of Supreme Court Justice Norman I. Siegel that she was “mentally ill and a proper subject for custody and treatment in a State Hospital for the mentally ill” (Claim, Exhibit A).

2. That the order of Justice Siegel has “never been rescinded and remains in full force and effect” (although it is clear that Maso was released from the psychiatric hospital some time between August 2001 and September 2004).

3. That on September 11, 2004, while in State custody at Bedford Hills Correctional Facility, Maso attempted to commit suicide by cutting herself, requiring in excess of 100 sutures.

4. That the attempted suicide was the result of negligence on the part of defendant’s employees.

5. That Maso was under a disability at the time the claim accrued and remains under such disability.

The claim also states that, upon its filing, her mother, Digna Caraballo will move the court for appointment as guardian ad litem for her daughter, which is the relief sought on this motion.

In support of the motion, Digna Caraballo alleges that her daughter’s 2001 commitment to the psychiatric hospital was the result of a suicide attempt at that time. She claims her daughter was “mentally ill” prior to and at the time of the subject incident and remains so to date. She asks that the court appoint her guardian ad litem to prosecute this claim and requests that the filing of a bond be waived.

Defendant opposes the motion and cross-moves to dismiss the claim for lack of jurisdiction arising from alleged late service and filing of the claim. Defendant notes that the claim accrued on September 11, 2004 and that it was not served and filed until August 2008, well beyond the 90-day period set forth in Court of Claims Act §10(3).

Two things are clear from the outset: (1) that the claim was served and filed more than 90 days after its accrual as required by Court of Claims Act § 10(3), and (2) that the August 2001 order finding claimant to be “mentally ill and a proper subject for custody and treatment in a State Hospital for the mentally ill” mandates the conclusion that claimant was under a “legal disability” within the meaning of Court of Claims Act § 10(5) at that time (Boland v State of New York, 30 NY2d 337 [1972]; Bowles v State of New York, 208 AD2d 440 [1st Dept 1994]; Frank v State of New York, 21 Misc 3d 387 [2008]; Muller v State of New York, 179 Misc 2d 980 [1999]). However, the issue here is whether claimant was under a legal disability when the claim accrued on September 11, 2004 and the submitted papers provide an insufficient basis for such a determination. All that is before the court are the unsupported allegations of claimant’s counsel and her mother that claimant continues to be mentally ill and that the 2001 order has “never been rescinded or vacated and hence remains in full force and effect” (affirmation in support of motion, ¶ 3). To this court’s knowledge, a supreme court order vacating or rescinding an order of commitment is not necessary for a person to be released from involuntary psychiatric treatment. In fact, such release occurs as the result of decisions made by the patient’s doctors. The question of when claimant’s disability was removed cannot be addressed based on the information currently before the court.

Neither party has submitted any treatment records, with the result that both parties have failed to meet their respective burdens of proof on these motions. With respect to defendant’s jurisdictional argument, there is sufficient information before the court to raise a reasonable possibility that claimant may have been under a legal disability on the date the claim accrued and these allegations are taken as true for the purpose of a motion to dismiss. Thus, the court must deny the motion to dismiss at this time. Nevertheless, since the probative evidence before the court is insufficient to determine whether § 10(5) applies – i.e., whether claimant was under a legal disability on September 11, 2004 and whether the claim was served and filed within two years after the removal of such disability – defendant is free to raise the jurisdictional defense in its answer and revisit the issue with a proper evidentiary foundation.

As to the application of Digna Caraballo to be appointed guardian ad litem pursuant to CPLR 1202, such relief requires a finding that claimant is incapable of “understanding the proceedings, defending her rights, and assisting counsel” (Matter of Barbara Anne B., 51 AD3d 1018 [2d Dept 2008]; see also Rapoport v Cambridge Development LLC, 51 AD3d 530 [1st Dept 2008]; Matter of Philip R., 293 AD2d 547 [2d Dept 2002]). The only factual allegations before the court are that claimant was involuntarily committed to a psychiatric hospital in 2001 and that she attempted suicide in 2004. These facts, without more, are clearly an insufficient predicate for the relief sought. There is nothing before the court as to claimant’s current condition.

Accordingly, both the motion and cross-motion are denied.

Additionally, the court sua sponte amends the caption to remove the reference to Digna Caraballo as proposed guardian ad litem

March 6, 2009
White Plains, New York

Judge of the Court of Claims

The court considered the following papers:

Notice of Motion, Affidavit and Exhibits

Notice of Cross-Motion, Affirmation and exhibits

Claimant’s Affirmation in Opposition and in Reply

Defendant’s Reply Affirmation