Court denied claimant's motion for permission to late file claim for personal injuries allegedly received while a member of the wrestling team at Binghamton University.
|Claimant(s):||ARTHUR N. GARVEY|
|Claimant short name:||GARVEY|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CATHERINE C. SCHAEWE|
|Claimant's attorney:||SUGARMAN LAW FIRM, LLP
BY: Rebecca A. Crance, Esq., of counsel
|Defendant's attorney:||HON. ANDREW M. CUOMO, ATTORNEY GENERAL
BY: Carol A. Cocchiola, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 14, 2009|
|See also (multicaptioned case)|
Claimant moves for permission to file and serve a late claim to recover for personal injuries allegedly received when he apparently contracted Herpes Simplex 1 while a member of the wrestling team at the State University of New York at Binghamton.(1) Claimant asserts that defendant was negligent by allowing him to practice or come into contact with wrestling team members who apparently had communicable diseases. Defendant opposes the motion. Claimant replies.
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 ). Claimant asserts that his cause of action accrued in November 2008 when he was diagnosed with Herpes Simplex 1. The applicable statute of limitations for a negligence cause of action is three years from the date of accrual (see CPLR 214 ). Accordingly, this motion mailed on June 22, 2009 is timely (Matter of Unigard Ins. Group v State of New York, 286 AD2d 58 ).
Having determined that the motion is timely, 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) claimant has any other available remedy.
Claimant asserts that because he had signed a National Letter of Intent and received an athletic scholarship, he felt an obligation to continue wrestling throughout the season. He retained counsel in June 2009, and shortly thereafter this application was prepared and filed. Claimant argues that the delay in filing a claim was therefore justified. Neither claimant's decision to forego litigation while satisfying his commitment to wrestle nor his initial lack of legal representation are legally acceptable excuses for the delay in timely serving a notice of intention to file a claim, or in timely filing and serving a claim (see e.g. Matter of Sandlin v State of New York, 294 AD2d 723 , lv dismissed 99 NY2d 589 ). Accordingly, 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. Claimant alleges that he was required to practice or train with a specific team member as his partner (Wrestling Partner). He states that this Wrestling Partner had suspicious-looking sores on his left arm, and had apparently told the head coach of the wrestling team (Coach) about them. Claimant asserts that even though the Coach told the Wrestling Partner to have the lesions checked by a physician and to cover the sores with athletic tape, he and claimant were nevertheless directed to continue practicing together. Claimant also states that the Wrestling Partner indicated that when he told the Coach that he had been diagnosed with Herpes Simplex 1, the Coach told him to skip five days of practice while on medication.
In order to charge defendant with notice, a claimant must establish either that supervisory level State officials were aware of the incident or that the incident itself is the type of event that would, in normal course, be investigated by supervisory personnel (Anadio v State of New York, Ct Cl, Mar. 31, 2003, Hard, J., Claim No. None, Motion No. M-65975 [UID # 2002-032-032]; Avila v State of New York, 131 Misc 2d 449 ). Claimant's assertion of notice, based solely upon hearsay statements from the Wrestling Partner, is insufficient to establish that a supervisory employee of defendant had notice that claimant's Wrestling Partner had been diagnosed with Herpes Simplex 1. The factor of notice therefore weighs against claimant.
However, defendant concedes that it now has the opportunity to investigate the underlying facts of the claim. Moreover, defendant does not assert that there will be substantial prejudice to the State in defending this claim, nor does the Court discern any prejudice. Thus, the factors of an opportunity to investigate and the lack of substantial prejudice weigh in favor of claimant.
Another factor to be considered is whether claimant has any other available remedy. Claimant alleges that he contracted the Herpes Simplex 1 virus from his Wrestling Partner, who - knowing that he had sores which appeared suspicious - continued to practice with claimant. As defendant correctly notes, claimant may have a separate cause of action against the Wrestling Partner (see e.g. Tischler v Dimenna, 160 Misc 2d 525 ). Accordingly, this factor weighs against 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 ). 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, 154 Misc 2d 199, 202-203 ).
"It is well settled that in order to set forth a prima facie case of negligence, the [claimant] must demonstrate: (1) a duty owed by the defendant to the [claimant]; (2) a breach of that duty; and (3) an injury suffered by the [claimant] which was proximately caused by the breach" (Murray v New York City Hous. Auth., 269 AD2d 288, 289 ).
Claimant alleges that defendant negligently allowed him to practice or otherwise come into contact with wrestling team members who apparently had communicable diseases. He further asserts that defendant failed to use proper hygiene procedures, because the athletic equipment, including wrestling mats, was not regularly cleaned and disinfected. Claimant specifically alleges that the Coach allowed him to practice with his Wrestling Partner, while knowing that said partner had suspicious-looking sores on his arm.
Claimant asserts that the day after his Wrestling Partner was diagnosed with Herpes Simplex 1, claimant discovered a suspicious-looking sore on his arm. Claimant was later diagnosed as having Herpes Simplex 1. He denies having experienced any form of Herpes or related symptoms prior to either his admission into Binghamton University or practicing with the wrestling team. Claimant has also provided an affidavit in support of this motion, containing the same basic information.(2)
Defendant argues that by not providing expert medical evidence which establishes "a medically accepted channel of transmission" of the diseases from the Wrestling Partner (or the athletic equipment) to claimant, the proposed claim lacks the appearance of merit. Conversely, claimant contends that because this is not a medical malpractice action, expert medical proof is not required.
Contrary to claimant's contention, an expert's affidavit is necessary in negligence cases where the nature of defendant's alleged wrongdoing cannot be assessed on the basis of common everyday experience and knowledge (Klingler v State of New York, 213 AD2d 378 ; Deutsch v City University of New York, Ct Cl, Dec. 21, 2007, Sise, P.J., Claim No. 113685, Motion No. M-73670, Cross Motion No. CM-73725 [UID # 2007-028-584]; Matter of Caracci v State of New York, 178 AD2d 876 ). Likewise, where the question of whether claimant's injuries were caused by defendant's alleged negligence cannot be assessed on the basis of everyday experience and knowledge, an expert's affidavit is also necessary (Wood v State of New York, 45 AD3d 1198, 1198 ; Tatta v State of New York, 19 AD3d 817, 818 , lv denied 5 NY3d 712 ; Wells v State of New York, 228 AD2d 581, 582 , lv denied 88 NY2d 814 ; Cartier v State of New York, Ct Cl, July 2, 2009, Scuccimarra, J., Claim No. 113515 [UID # 2009-030-019]).
Claimant alleges that because of defendant's apparent negligence he contracted Herpes Simplex 1, as well as two other infections. Because the issue - whether the claim alleges a viable means of transmission of these infections - is not within the ambit of everyday experience and knowledge of a layperson, it is clear that medical expert opinion evidence would be necessary to establish that claimant acquired these medical conditions from practicing with the Wrestling Partner and/or using certain athletic equipment. Without such an affidavit, claimant cannot show the appearance of merit to this claim. Accordingly, the all-important factor of merit weighs against claimant.
Four of the six statutory factors, including the crucial factor of merit, weigh against claimant. Claimant's motion for permission to file and serve a late claim is hereby denied, without prejudice.
December 14, 2009
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims
The following papers were read on claimant's motion:
1) Notice of Motion filed on June 23, 2009; Affirmation of Rebecca A. Crance, Esq., dated June 22, 2009, and attached exhibits.
2) Affirmation in Opposition of Carol A. Cocchiola, Assistant Attorney General, dated September 16, 2009.
3) Reply Affirmation of Rebecca A. Crance, Esq., dated September 21, 2009.
1. Claimant also requests that the proposed claim, attached as the first Exhibit A to the motion papers, be deemed served, nunc pro tunc, as of the service date of the motion. Because claimant served the motion papers upon defendant State of New York (defendant) by overnight delivery, which is not an authorized method of service pursuant to Court of Claims Act § 11, his request is denied.
2. In his affidavit, claimant also indicates that while lifting weights, he suffered an injury to the middle finger on his left hand. Because the injury did not heal, claimant sought medical attention and was advised that he had a "staph infection" as well as Herpes Simplex 1. Claimant also alleges that in September 2008, he contracted ringworm from wrestling.