Claimant's motion for reargument of decision denying late claim motion granted in part, and upon reargument, the Court adheres to its prior decision. Although Cour may have erroneously concluded that claimant had available to him the remedy of an action against the individual medical providers, claimant conceded that he could have pursued a federal action and, in any event, the factor of the appearance of merit weighed decisively against granting the late claim application.
|Claimant short name:||LALL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||TARCHAND LALL, Pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Heather R. Rubinstein, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 9, 2020|
|See also (multicaptioned case)|
Claimant, an individual currently incarcerated in a State correctional facility, filed this motion seeking leave to reargue the Court's August 19, 2020 Decision and Order denying his motion for late claim relief, in which claimant alleged that he was the victim of medical malpractice or medical negligence at Green Haven Correctional Facility (CF) in March and August 2019 (see Lall v State of New York, UID No. 2020-038-549 [Ct Cl, DeBow, J., Aug. 19, 2020]). Defendant opposes the motion.
The CPLR provides that "[a] motion for leave to reargue . . . shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221 [d] ).(1) In support of the instant motion, claimant argues that the Court misapprehended the nature of the claim, erroneously concluding that the claim sounded in medical malpractice rather than medical negligence, and that since the claim sounded in negligence, claimant thus was not required to submit an expert affidavit or medical records to demonstrate the appearance of merit of his proposed claim (see Motion for Leave to Reargue Pursuant to CPLR §2221 [d], ¶¶ 4-7). Claimant further argues that the Court's conclusion in its prior decision that he had other remedies available to him to vindicate his allegations of medical malpractice/negligence in the form of an action against the individual doctors and medical providers was "not possible" because he "is required to litigate this matter in the court of claims as all relevant parties involved are employed by the State of New York" (id. at ¶ 8 [emphasis in original]). Claimant argues that "[t]his is what [he] was trying to assert when he stated that 'he would find it difficult to pursue such a proceeding and [it would] severely prejudice his ability for relief in this
matter' " (id. at ¶ 8). Claimant argues that because the Court "misconstrued" these two factors - the appearance of merit and the availability of other remedies - the Court should grant the instant motion for reargument, and, upon reargument, find that five of the six statutory factors under Court of Claims Act § 10 (6) weighed in favor of granting the late application, and that the Court should thus grant his late claim application (see id. at ¶¶ 9-10).
Defendant argues that claimant's motion to reargue must be denied because "[i]t appears from the motion papers that Claimant is not making any new legal or factual arguments but simply re-stating his original pleadings," and that "[c]laimant has also failed to set forth a legitimate basis upon which leave to reargue can be granted" (Rubinstein Affirmation, ¶¶ 5-6).
With respect to claimant's argument that he was not obligated to submit an expert affidavit to demonstrate the appearance of merit for the cause of action sounding in medical negligence, the Court clearly held in its prior decision that although expert proof was not required to prove that administration of an incorrect medication constituted a breach of the duty of care, expert proof was required to prove that such breach caused claimant's injuries inasmuch as the medical records submitted with the proposed claim did not establish the causal connection between the administration of the incorrect medication and claimant's injuries (see Lall, UID No. 2020-038-549, supra). Because the Court thoroughly addressed the necessity of an expert affidavit to support a proposed claim sounding in medical negligence and concluded that, under those circumstances, such an affidavit was necessary, claimant has not demonstrated any matter of fact or law that the Court overlooked or misapprehended with respect to the appearance of merit of the proposed claim.
With respect to the Court of Claims Act § 10 (6) factor of the availability of other remedies, the Court concluded that claimant had available to him the alternate remedy of an action against the individual medical providers involved with this claim, and claimant conceded that he had available to him the additional remedy of an action in federal court (see Lall, 2020-038-549, supra). The law is clear that claims alleging medical malpractice and negligence claims against medical providers employed by defendant for "actions or omissions within the scope of their employment" must be brought in the Court of Claims, whereas New York State Supreme Court has jurisdiction over claims against outside medical providers who are not employees and "provide contractual medical services" to claimants (Rothschild v Braselmann, 157 AD3d 1027, 1028 [3d Dept 2018]). To the extent that the Court erroneously concluded that the claim asserted only claims against outside medical professionals, and not medical providers employed by defendant, the Court will grant reargument, but will adhere to its prior decision and order for the reasons that follow.
First, claimant does not dispute, in connection with the instant motion, that he conceded that he also had available to him the remedy of a federal civil rights action, but felt that such a proceeding would be too difficult to pursue. Second, even if the Court were to conclude that claimant had no other remedy available to him, the Court still would have denied claimant's motion for late claim relief inasmuch as the critical factor of the appearance of merit weighs decisively against the granting of the application.
Accordingly, it is
ORDERED, that claimant's motion number M-96006 is GRANTED IN PART, and upon reargument, the Court adheres to its prior decision and order.
December 9, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Motion for Leave to Reargue Pursuant to CPLR §2221 (d), sworn to September 15, 2020;
2. Affirmation of Heather R. Rubinstein, AAG, in Opposition, dated November 5, 2020;
3. Decision and Order, Lall v State of New York, UID No. 2020-038-549 (Ct Cl, DeBow, J., Aug. 19, 2020).
1. The CPLR requires that a motion for leave to reargue "shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry" (CPLR 2221 [d] ). However, on March 20, 2020, in response to the Coronavirus pandemic, the Governor issued Executive Order No. 202.8, which, among other things, directed that "any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to [certain state laws], any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020" (Executive Order No. 202.8, dated Mar. 20, 2020 [9 NYCRR 8.202.8]). That directive was extended through successive Executive Orders, including Executive Order No. 202.67, which extended the directive for a final time through November 3, 2020, and stated that the toll would not be further extended (see Executive Order No. 202.67, dated Oct. 4, 2020 [9 NYCRR 8.202.67]; see also Executive Order No. 202.72, dated Nov. 3, 2020 [9 NYCRR 8.202.72] [toll on time limits for service of any motion prescribed by the CPLR no longer in effect as of November 4, 2020]). Accordingly, claimant's time to file and serve the instant motion for leave to reargue was not subject to the 30-day time limitation set forth in the CPLR inasmuch as the Court's prior decision and order was issued and this motion was filed during the pendency of the tolling period imposed by Executive Order.