Schneider v State of New York

[*1] Schneider v State of New York 2004 NY Slip Op 51740(U) Decided on February 5, 2004 Court Of Claims Patti, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 5, 2004
Court of Claims

ANGELINA SCHNEIDER, Claimant,

against

THE STATE OF NEW YORK, Defendant.



106220



For Claimant:

IVAR GOLDART, ESQ.

For Defendant:

HON. ELIOT SPITZER

Attorney General of the State of New York

BY: THOMAS G. RAMSAY, ESQ.

Assistant Attorney General

Philip J. Patti, J.

On October 1, 2003, the following papers were read on motion by Defendant to dismiss and on cross-motion by Claimant to file a late claim:

Notice of Motion to Dismiss, Affirmation and Annexed Exhibit Opposing AffirmationNotice of Cross Motion, Affirmation and Annexed ExhibitsAffirmation in Opposition to Cross-MotionReply Affirmation and Annexed ExhibitAffirmation in Opposition to Reply AffirmationDefendant's Letter dated April 25, 2003Claimant's Letter dated August 28, 2003 with Verified Proposed Claim

Filed Papers: Claim; Answer [*2]

The State of New York moves for dismissal of the claim herein, primarily on the ground that the notice of intention to file a claim was not verified. A brief chronological recitation will provide some clarity.

The underlying incident occurred at Albion Correctional Facility on October 4, 2000, and service of the notice of intention was accomplished on November 13, 2000 by certified mail, return receipt requested, as required by statute (Court of Claims Act §11[a]). The claim was thereafter served and filed on June 14, 2002, and in its answer filed on July 1, 2002, the Defendant raised the absence of verification of the notice of intention as its sixth affirmative defense. The seventh affirmative defense alleges in effect that since the notice of intention was a "nullity," no sufficient claim or notice of intention was served within 90 days, and thus the claim itself was time barred.

The Court of Appeals, in a recent opinion in Lepkowski v State of New York (1 NY3d 201), has held, inter alia, that Court of Claims Act §11(b) therefore "embraces CPLR 3022's remedy for lapses in verification." As the Court of Appeals observed, pursuant to CPLR 3022, "[a] defendant who does not notify the adverse party's attorney with due diligence waives any objection to an absent or defective verification."

Here, as the question was not raised until the filing of the answer on July 1, 2002, some 20 months after service of the unverified notice of intention, the Defendant waived any such objection. Accordingly, to the extent that this motion seeks dismissal of the claim in reliance upon the unverified notice of intention, it is denied.

Defendant seeks additional relief, unrelated to verification, dismissing various causes of action challenging timeliness and subject matter jurisdiction. First and foremost, Defendant seeks dismissal of all causes of action sounding in intentional tort. The claim, while not separately stating and numbering the distinct causes of action or the elements thereof (CPLR 3013), in Claimant's words, sounds "in assault; battery; deliberate indifference to claimant's health and safety; harassment; negligent and intentional infliction of emotional distress; prima facie tort; negligent training, supervision and retention of correction officers; negligent failure to provide medical treatment and violation of claimant's civil rights within the ambit of Title 42 United States Code 1983" (Claim, ¶ 9]. It might be contended that Paragraph 15 of the claim elaborates or adds to the nature of the causes of action. On the whole, the claim suffers from the failure to have each distinct cause of action and its elements separately alleged.

Nonetheless, Defendant argues that the claim, as to any causes of action which sound in intentional tort, which was served and filed some 20 months after the accrual of the underlying causes of action, was untimely, beyond the one-year period for such filing and service specifically articulated in Court of Claims Act §10(3-b). Accordingly, as to assault and battery, they are intentional torts (CPLR 215[3]), and those causes of action are untimely and they must be dismissed. As to prima facie tort, it is clear that "[a] claim for damages for an intentional tort, including a tort not specifically listed in CPLR 215(3), is subject to a one-year limitation period [citation omitted]" (Havell v Islam, 292 AD2d 210). Accordingly, the cause of action sounding in prima facie tort is dismissed as untimely. I note that this defense was preserved with particularity in the eighth [*3]affirmative defense alleged in the answer (Court of Claims Act §11[c]).[FN1] Similarly, to the extent that the claim herein alleges any cause of action which sounds in intentional tort, the motion is granted and those causes of action are dismissed.

With respect to the cause of action sounding in intentional infliction of emotional distress, it is well-settled that public policy prohibits recovery against the State (Wheeler v State of New York, 104 AD2d 496; DeLesline v State of New York, 91 AD2d 785, lv denied 58 NY2d 610). With respect to the cause of action purporting to sound in harassment, it is the essential equivalent of the intentional infliction of emotional harm, and is also dismissed on public policy grounds (Brown v State of New York, 125 AD2d 750, lv dismissed 70 NY2d 747; Wheeler v State of New York, supra; DeLesline v State of New York, supra). Similarly, the State of New York is not amenable to suit under 42 USC §1983 in the Court of Claims (Brown v State of New York, 89 NY2d 172; also see, Will v Michigan Dept. of State Police, 491 US 58). As to these three causes of action, the State alleged the purported lack of jurisdiction in its tenth affirmative defense. The motion is thus granted to the extent of dismissing these causes of action.

The motion to dismiss also seeks dismissal of any cause of action sounding in medical malpractice. In the course of the answering and reply affirmations, etc., relating in part to the late claim application, Claimant unequivocally asserts that she is not seeking any claim based upon medical malpractice. Thus, to the extent that such may be inferred from the claim, the motion is granted. I will digress here for a moment to address the cause of action which Claimant asserts is one for a negligent failure to provide medical treatment. The pleadings leave much to be desired, as it is not clear whether the purported negligence consisted of waiting one hour to take Claimant to Medina Memorial Hospital, or that Medina Memorial Hospital was not equipped or staffed to handle reconstructive surgery, or that the escorting officers failed to bring the urgency of Claimant's condition to the Emergency Room staff at Strong Memorial Hospital and that she was not evaluated until some four hours after her arrival, or some other negligent act, and that such hypothetical negligent delay was a proximate cause of some injury or damages sustained by Claimant. It certainly is not clear, or alleged, that the escorting officers were on notice of any purported exigent circumstances and then negligently proceeded to delay Claimant's access to medical care. I would expect that the clarity of that cause of action will be refined during discovery.

In any event, all causes of action for which dismissal was not sought and which are not specified above remain viable. In reviewing the cross-motion for permission to file a late claim, the only distinct cause of action not contained within the filed claim which is addressed in the proposed claim is a cause of action which alleges negligence when Correction Officer Ashcroft allegedly slammed a security door while Claimant was still in the doorway causing the open fracture of Claimant's right index finger. While these allegations were recited in the filed claim, it is possible that a separate cause of action sounding in negligence might not be inferable in the original claim. Accordingly, as to that portion of the cross-motion which recites a cause of action sounding in negligence, it is granted. [*4]

All other alleged causes of action sought in the late claim application are either untimely, as noted above (see 4 n.1), seek relief for which the Defendant is not liable in this Court generally on public policy grounds (also discussed above), or have not been dismissed by me. In reviewing the statutory criteria of Court of Claims Act §10(6), the notice of intention put the State on timely notice of the essential facts and gave it an opportunity to investigate. There is no other remedy available and there is no discernible prejudice in permitting this limited cause of action to proceed. The Claimant's excuse, if anything, sounds in law office failure, for the failure to have specified a cause of action sounding solely in negligence. As to the appearance of meritoriousness, the allegations, standing alone, to wit, that a correction officer slammed a door while Claimant was still standing in the doorway, at least for pleading purposes, could implicate negligence. Of course, I am well aware that the tenor of the pleadings has also suggested intentional, deliberate conduct by the correction officer, which if established, might negate inferences of negligence. That resolution however may involve future motion practice or a trial.

The motion thus is denied in part and granted in part, and the cross-motion for permission to file a late claim is denied in its entirety as unnecessary, except for permitting a cause of action which sounds in negligence. Accordingly, within 45 days of service of a file-stamped copy of this order, the Claimant shall file and serve a claim which alleges only the causes of action alleged in the original claim which have not been dismissed herein and which adds a single additional cause of action sounding in negligence. Each such cause of action shall be pleaded separately, consistent with the requirements of CPLR 3013. The Clerk is directed to serve this decision and order herein upon the parties. Footnotes

Footnote 1: Claimant has filed a cross-motion for permission to file a late claim, discussed infra. None of these causes of action would satisfy the requirement of Court of Claims Act §10(6) that a proposed cause of action must not be time barred under the provisions of CPLR article 2.