Claimant's late claim motion is denied and his CPLR 1101 motion is denied as moot.
|Claimant short name:||DOE|
|Footnote (claimant name) :||The Court has amended the caption sua sponte pursuant to Civil Rights Law 50-B.|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DIANE L. FITZPATRICK|
|Claimant's attorney:||JOHN DOE
|Defendant's attorney:||ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Sean B. Virkler, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 12, 2017|
|See also (multicaptioned case)|
On April 28, 2017, Movant served Defendant with this late claim motion brought pursuant to Court of Claims Act section 10 (6), seeking to file and serve a proposed claim alleging five separate causes of action: assault and battery, sexual assault, invasion of privacy, denial of medical treatment, and abuse of power. He alleges the proposed claim accrued on July 29, 2014. Defendant opposes the motion.
Court of Claims Act section 10 (6) allows a movant who has failed to timely serve a notice of intention or file and serve a claim to pursue late claim relief at any time before an action asserting a like claim against a citizen of the State would be barred under the provisions of article two of the CPLR. The Court is without jurisdiction to permit a late filing if the underlying cause of action is time-barred (see Arbor Hill Partners v New York State Commr. of Hous. & Community Renewal, 267 AD2d 675, 677 [3d Dept 1999]).
Movant's causes of action for assault and battery and sexual assault will not be permitted to be asserted against the State because these are intentional causes of action with a one-year statue of limitations which expired almost two years ago (CPLR 215 ). Similarly, the proposed cause of action labeled "abuse of power"(2) will not be permitted for the same reason.
The proposed cause of action for "invasion of privacy" also will not be permitted but for two reasons. First, New York does not recognize a common law right of privacy, and the statutory right of privacy under Civil Rights Law Article 5 is not applicable to the facts alleged (see Messenger v Gruner v Jahr Print. & Publ., 94 NY2d 436, 441 ). There is also no right of privacy under the New York State Constitution (Kelly v State of New York, UID No. 2013-030-517 [Ct Cl, Scuccimarra, J., Jan. 31, 2013], citing Waldron v Ball Corp., 210 AD2d 611 [3d Dept 1994], lv denied, 85 NY2d 803 ). Secondly, the alleged facts underlying this proposed cause of action involve intentional acts limited to a one-year statute of limitation (see Fischer v Forrest, 2017 WL 128705, *14 [S.D.N.Y. 2017][violation of the statutory right to privacy, subject to one-year statute of limitation]).
A remaining cause of action in the proposed claim is for the alleged denial of Movant's needed medical care and treatment. Although this cause of action could also be untimely to the extent it sounds in medical malpractice - the failure to provide medical treatment in accordance with the standard of care - the allegations, here, support an ordinary negligence cause of action for failure to provide any medical attention for Movant's complaints of pain in violation of the Department of Corrections and Community Supervision directives (see Kagan v State of New York, 221 AD2d 7, 10 [2d Dept 1996]; Thomas v State of New York, 10 Misc 3d 1072 [A] [Ct Cl 2005]). The proposed claim also asserts violations of the New York State Constitution Article 1. The late claim application is timely for these causes of action (CPLR 214 ; Weimer v Lake, 268 AD2d 741 [3d Dept 2000]; Liddell v State of New York, 182 Misc 2d 133, 138 [Ct Cl 1999]). Turning to the merits of the motion for the timely raised causes of action, Court of Claims Act section 10 (6) requires the Court in deciding an application for permission to file a late claim give consideration to six factors: (1) whether there is a reasonable excuse for the delay in filing the claim; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a notice of intention resulted in substantial prejudice to the state; (6) whether there is any other available remedy, and any other relevant factors. There is no one factor that is determinative, rather it is a balancing of all of the factors that may warrant granting the application (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 ; Ledet v State of New York, 207 AD2d 965 [4th Dept 1994]).
Movant has not met the first factor for consideration because he has not provided a valid excuse for failing to timely serve a notice of intention or file and serve a claim, and he has not provided any explanation for the almost three-year delay in bringing this motion. Movant asserts that his hospitalization and delay in the return of his personal property prevented him from timely serving and filing an action in the Court of Claims. Movant has only accounted for 21 of the 90 days after the date of accrual to serve a notice of intention or file and serve a claim.
Whether the State had notice of the essential facts, an opportunity to investigate the underlying claim, and whether it will suffer substantial prejudice if the late filing and serving of the claim are permitted will all be addressed together. Movant asserts that he was interviewed by the Inspector General about the incident while he was in the hospital, and that this placed the State on notice of the essential facts and the opportunity to investigate. Defendant, in the affirmation of the Assistant Attorney General, disputes notice and an opportunity to investigate. Defendant has not provided information from anyone with actual knowledge nor is there any dispute that the Inspector General conducted an investigation. Although the Inspector General's investigative file and reports may not be available for review (see Lowrance v State of New York, 185 AD2d 268 [2d Dept 1992]), it seems unlikely that Movant was taken to an outside hospital for his injuries, given a mental health evaluation, treated by a psychiatric counselor, and the Inspector General was made aware of allegations warranting it to commence an investigation, without any DOCCS investigation or documentation. Even if the Court accepts that the State lacked notice of the underlying facts and did not investigate, there are certainly some records and names of witnesses that can be used to perform an investigation which will limit any prejudice despite the extensive delay in bringing this motion.
Whether the proposed claim appears to be meritorious, is often referred to as the most essential factor. Unlike a party who has timely filed a claim, one seeking permission to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]). Generally, a proposed claim meets this standard if it is not patently groundless, frivolous, or legally defective, and upon consideration of the entire record there is cause to believe that a valid cause of action (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]).
To the extent that Movant seeks to assert a cause of action for violation of the New York State Constitution in his proposed claim, his application is legally defective and must be denied under the standards of Santana. The Court of Claims is a court of limited jurisdiction, having the authority to hear only those actions which are permitted by statute (Court of Claims Act §§ 8 and 9). In Brown v State of New York, 89 NY2d 172 , the Court of Appeals, for the first time, recognized that a constitutional tort cause of action was actionable in the Court of Claims (Brown, 89 NY2d at 183). The Court set forth specific criteria to assess when a damage remedy should be implied for a violation of a constitutional provision and described this as a "narrow remedy" which should only be available when the constitutional provision implicated is self-executing, a constitutional tort is the only means for relief, and implying this cause of action will deter such wrongdoing in the future (see Martinez v City of Schenectady, 97 NY2d 78, 83-84 ; Brown, 89 NY2d at 186-190; Bullard v State of New York, 307 AD2d 676 [3d Dept 2003]; Gill v State of New York, 13 Misc 3d 1223[A] [Ct Cl, 2006]; De La Rosa v State of New York, 173 Misc 2d 1007, 1010 [Ct Cl 1997]). The Court does not reach the question of whether the circumstances of this case warrant implying a constitutional tort cause of action, because Movant has failed to set forth the information necessary for this Court to fully evaluate the merit of the potential cause of action under the limitations set forth in Brown. Movant has not specified what constitutional provisions the State allegedly violated, making the proposed claim legally defective under the requirements of Court of Claims Act section 11 (b) for this cause of action (see generally Oakland v State of New York, UID No 2017-045-020 [Ct Cl, Lopez-Summa, J., June 19, 2017]; Burks v State of New York, UID No 2017-041-039 [Ct Cl, Milano, J., June 13, 2017]; Alpert v State of New York, UID No 2017-040-027 [Ct Cl, McCarthy, J., March 1, 2017]).
Movant also seeks to assert an ordinary negligence cause of action for DOCCS failure to comply with its own department and institutional directives to provide Movant with medical treatment. Undisputedly, the State owes a duty to provide for the "health and care of [its] charges" (Cauley v State of New York, 224 AD2d 381, 381-382 [2d Dept 1996]; Gordon v City of New York, 70 NY2d 839, 840 ) which includes the duty to provide adequate and appropriate medical treatment in accordance with the medical standard of care, but also a duty of ordinary care (Matter of Farace v State of New York, 176 AD2d 1228 [4th Dept 1991]; McCrossen v State of New York, 277 AD 1160 [4th Dept 1950]). A negligent delay in providing proper medical attention is actionable as ordinary negligence if it is proximate or aggravating cause of an injury (Andrews v County of Cayuga, 96 AD3d 1477, 1478 [4th Dept 2012]; Friedmann v New York Hosp.-Cornell Med. Ctr., 65 AD3d 850, 851 [1st Dept 2009]; Marchione v State of New York, 194 AD2d 851 [3d Dept 1993]; see also Stanback v State of New York, 163 AD2d 298 [2d Dept 1990]). A ministerial neglect cause of action arises when nondiscretionary medical standards or protocols are breached and directly result in injury (Kagan v State of New York, 221 AD2d 7, 10 [2d Dept 1996]). In Kagan, the Appellate Court affirmed the finding that claimant had established a cause of action for ministerial neglect for the State's failure to provide adequate medical care by delaying screenings and a comprehensive hearing evaluation in violation of its Sick Call and Physician Referral Procedure protocol.
The Movant states the incident began on July 27, 2014, at Gouverneur Correctional Facility. He alleges that he was stripped naked, checked for contraband, and then repeatedly assaulted by certain correction officers for approximately 20 minutes. He then alleges that he was dressed and placed in an empty cell. The next morning he indicates he asked a nurse for medical attention, and she told him to put his request in writing. He protested that he had nothing to write on or with, but the nurse left the area. He claims that he was left in pain - for some unidentified period of time - until he was taken to an outside hospital where he received treatment. Movant's application has failed to set forth the necessary facts for a ordinary negligence cause of action. Movant does not describe what his injuries were after the assault, he does not indicate how long after he spoke with the nurse that he was taken to an outside hospital, he does not allege a violation of any specific directive or protocol, and he also does not allege that the delay in medical attention caused any injuries.
The final factor is whether Movant has any other available remedy. Defendant does not argue that Movant has another remedy, and since Movant is an inmate under the care of the State, it does not appear that he would have any other remedy.
Based upon the foregoing, Movant's late claim application is DENIED, and his CPLR 1101 motion is denied as moot.
September 12, 2017
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following in deciding this motion:
1) Notice of Motion.
2) Affidavit of John Doe sworn to March 8, 2017, in support, with attachments thereto.
3) Affirmation of Sean B. Virkler, Esquire, Assistant Attorney General, in opposition.
2. There seems to be a question as to whether there is a recognized separate "abuse of power" cause of action (see Terry v Incorporated Vill. of Patchogue, 23 Misc 1118[A] [Sup. Ct, Suffolk Co.] [abuse of power cause of action]; Shaffer v State of New York, UID No. 2017-040-074 [Ct Cl, McCarthy, J., June 26, 2017] [denied late claim application in part for failure to show facts were an abuse of power]; but compare Wheeldin v Wheeler, 37 US 647, 652  [no federal abuse of power suit for violation of subpoena power]; Baldwin Research v State of New York, UID No. 2015-015-053 [Ct Cl, Collins, J. July 21, 2000] [no abuse of power cause of action]).