Williams v State of New York

[*1] Williams v State of New York 2012 NY Slip Op 52519(U) Decided on September 26, 2012 Court Of Claims Bruening, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 26, 2012
Court of Claims

Shikema Williams, administratrix of the estate of FREDERICK VELEZ, CHRISTINE COX, FREDERICK HALL, and SHAMIA HALL, by her mother and natural guardian, SABRINA HALL, Claimant(s)

against

The State of New York, Defendant(s)



2012-048-065



Claimant's attorney:

JEFFREY A. ROTHMAN, Esq.

AMEER BENNO, Esq.

Defendant's attorney:

HON. ERIC T. SCHNEIDERMAN

Attorney General of the State of New York

By: G. Lawrence Dillon, Esq.

Assistant Attorney General
Glen T. Bruening, J.

Frederick Velez, who was an inmate at Oneida Correctional Facility, died on April 25, 2009, two hours after having been stabbed with a shank and beaten by a fellow inmate, Jose Rodriguez, after the two argued during a game of checkers. Shikema Williams, as [*2]Administratrix of the Estate of Frederick Velez, and Christine Cox, Frederick Hall, and Shamia Hall, by her mother and natural guardian, Sabrina Hall, bring this motion seeking an order granting them leave to file a late claim pursuant to Court of Claims Act§ 10 (6). The Proposed Claim asserts a violation of the New York State Constitution, Article 1, §§ 5, 6[FN1] , and seeks damages for Mr. Velez's conscious pain and suffering and wrongful death predicated on Defendant's alleged negligence in failing to protect Mr. Velez and in the hiring, screening, training, retention and supervision of its employees (see Proposed Claim, paragraphs 7 and 9). Christine Cox — the decedent's mother — and Frederick Hall and Shamia Hall — the decedent's children — assert violations of their own rights under the New York State Constitution and seek damages for their own physical and emotional injuries, "Hedonic damages,"[FN2] and damages based on the untimely end of each of their respective relationships with Mr. Velez "with the corresponding loss of services, assistance, society, guidance, counsel, advice and love" (Proposed Claim, paragraphs 64-66). Defendant opposes Claimants' motion.

The papers before the Court reveal that on July 22, 2009, Shikema Williams — Mr. Velez's sister — served a Notice of Intention to File a Claim (Notice of Intention) on the Attorney General as the "proposed administratrix" of Mr. Velez's estate seeking damages for his conscious pain and suffering and wrongful death due to the negligence of Defendant in failing to take reasonable precautions to safeguard Mr. Velez, in failing to adequately treat Mr. Velez, and in the operation, supervision and control of the Oneida Correctional Facility (see Affirmation of Jeffrey A. Rothman, Esq., Exhibit B). However, at the time of service of this Notice of Intention, Ms. Williams was not yet appointed as Mr. Velez's legal representative. On June 17, 2010, Ms. Williams was appointed as the Administratrix of Mr. Velez's Estate and, on August 2, 2010, served a second Notice of Intention on the Attorney General, as Administratrix of the Estate of Frederick Velez (see Affirmation of Jeffrey A. Rothman, Esq., Exhibit C).[FN3] The instant application, seeking relief pursuant to Court of Claims Act § 10 (6), was made on April 23, 2012.

As background, "a wrongful death action belongs to the decedent's distributees and is designed to compensate the distributees themselves for their pecuniary losses as a result of the wrongful act . . . In comparison, a personal injury action on behalf of the deceased under EPTL 11-3.2 (b) seeks recovery for the conscious pain and suffering of the deceased and any damages awarded accrue to the estate" (Heslin v County of Greene, 14 NY3d 67, 76-77 [2010] [*3][citations omitted]). "There are four elements of compensable loss encompassed by the general term pecuniary loss': (1) decedent's loss of earnings; (2) loss of services each survivor may have received from decedent; (3) loss of parental guidance from decedent; and (4) the possibility of inheritance from decedent" (Huthmacher v Dunlop Tire Corp., 309 AD2d 1175, 1176 [4th Dept 2003] [citations omitted]). In other words, recovery in a wrongful death action is restricted to injuries measurable in money damages and does not include recovery for loss of consortium, which, as is relevant to this matter, includes grief, loss of society, or affection (see Liff v Schildkrout, 49 NY2d 622, 633 [1980]). However, as part of a personal injury action, a derivative cause of action may be permitted to reflect loss of consortium during the period of a decedent's conscious pain and suffering (see Id. at 632).

In an action based upon wrongful death, Section 10 (2) of the Court of Claims Act requires that a claim be served and filed within 90 days after the appointment of an executor or administrator, unless a written notice of intention is served within such time, in which event the claim must be served and filed within two years after the death of the decedent. The applicable provisions for a cause of action for conscious pain and suffering based on defendant's negligence are set forth in Court of Claims Act § 10 (3), which requires that a claim be filed with the Clerk of the Court and served upon the Attorney General within 90 days after its accrual — in this case, the date of death — unless, within that same time frame, a notice of intention is served upon the Attorney General, in which event the claim shall be filed and served within two years after its accrual (see Pelnick v State of New York, 171 AD2d 734, 735 [2d Dept 1991]). Likewise, constitutional tort causes of action are governed by the two year time limitations set forth in Court of Claims Act § 10 (3) (see Brown v State of New York, 250 AD2d 314, 319 [3d Dept 1998]).

Failure to timely serve the Attorney General with the notice of intention, or to timely file and serve the claim, divests the Court of subject matter jurisdiction (see Alston v State of New York, 97 NY2d 159, 164 [2001]; Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]). However, if a claimant fails to timely file or serve the claim, or fails to timely serve the notice of intention, he or she may move the Court for permission to file and serve a late claim, so long as the applicable statute of limitations set forth in Article 2 of the CPLR has not expired (see Court of Claims Act §10 [6]). Claims for conscious pain and suffering based on negligence and claims alleging constitutional torts are governed by CPLR § 214 (5), which requires that such actions be commenced within three years of the date of the injury (see Brown v State of New York, 250 AD2d at 318-319). While the statute of limitations applicable to wrongful death actions is not contained in Article 2 of the CPLR, Section 201, states that "an action . . . must be commenced within the time specified in this article unless a different time is prescribed by law." Accordingly, a wrongful death action, the statute of limitations of which is governed by Section 5—4.1 (1) of the Estates, Powers and Trusts Law, is required to be commenced within two years of a decedent's death.

Here, the application of Shikema Williams, as Administratrix of the Estate of Frederick Velez, for late claim relief for damages based on Mr. Velez's conscious pain and suffering due to Defendant's alleged negligence and for damages sustained as a result of alleged constitutional violations is timely, as the application was made within three years of Mr. Velez's death. However, insofar as Claimants seek to commence an action for the wrongful death of Mr. Velez, [*4]the application for late claim relief — made April 23, 2012 — is untimely as it was not made within two years of Mr. Velez's date of death (see Court of Claims Act § 10 [6]; EPTL 5-4.1). Accordingly, the Proposed Claim, insofar as it asserts a cause of action for wrongful death, is time-barred, and the Court lacks the discretion to grant late claim relief with respect to this cause of action (see Dolberry v State of New York, 71 AD3d 948, 948 [2d Dept 2010], appeal dismissed 15 NY3d 741 [2010]).[FN4]

In addressing the substance of Claimants' motion with respect to the remaining causes of action, including claims for damages for Mr. Velez's conscious pain and suffering, constitutional violations and claims made by Christine Cox, Frederick Hall, and Shamia Hall in their individual capacities seeking damages for a violation of their own constitutional rights and for their own pain and suffering, the Court of Claims is vested with broad discretion to grant or deny a motion that seeks permission to file a late claim (see Langner v State of New York, 65 AD3d 780, 783 [3d Dept 2009]) after consideration of, "among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether 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 the state; and whether the claimant has any other available remedy" (Court of Claims Act § 10 [6]). However, "the presence or absence of any one factor should not be deemed controlling" (Matter of Martinez v State of New York, 62 AD3d 1225, 1226 [3d Dept 2009] [internal quotation marks and citation omitted]).

With respect to the excusable delay factor in Court of Claims Act § 10 (6), Claimants contend that the delay in filing the Claim was excusable because two Notices of Intention were served on the Attorney General. In opposition, Defendant argues that neither Notice of Intention was valid, since the first was served prior to Ms. Williams having received authority to act on behalf of Mr. Velez's Estate and because the second was served more than one year after Mr. Velez's death.[FN5] However, because Claimants do not actually provide an excuse as to why the Claim was not timely filed and, because ignorance of the law is not an acceptable explanation for such a delay (see Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]), while not a bar to their application, the excusable delay factor does not weigh in Claimants' favor.

With respect to the Section 10 (6) factors of notice of essential facts, opportunity to investigate and substantial prejudice to the State, Claimants assert that the State was made aware of the facts forming the basis of the Claim through the two Notices of Intention served on the Attorney General, a DOCS'[FN6] "Unusual Incident Report" dated May 1, 2009 which purportedly documents the incident of April 24, 2009, an investigation of the incident purportedly conducted by the New York State Police, and based on the fact that Jose Rodriguez was ultimately "prosecuted and convicted" as a result of the incident (Affirmation of Jeffrey A. Rothman, Esq., paragraph 10).[FN7] By this evidence, Claimants submit that Defendant had notice of the essential facts of the Claim, was provided with a full and fair opportunity to investigate the incident, and would not be prejudiced by the filing and service of a late claim. In response, while Defendant contends that Claimants' application does not provide it with sufficient information by which to conduct a reasonable inquiry and that it would be prejudiced by the filing of a late claim, Defendant submitted only the affirmation of an attorney with no personal knowledge of the facts and failed to substantiate its allegations (see Matter of Powell v State of New York, 187 AD2d 848, 848-849 [3d Dept 1992]). Accordingly, the Court weighs these factors in Claimants' favor.

With respect to whether Claimants have other remedies available, Claimants acknowledge that they are pursuing a federal civil rights claim under 42 USC § 1983, but argue that the standard to prevail under such a claim is more onerous and, to the extent that the Proposed Claim only sounds in negligence, this Court would be the only forum where Claimants could obtain relief. Regardless of the standard of proof, Claimants have an alternative remedy available and this factor does not weigh in Claimants' favor.

While the final factor applicable to Claimants' motion — the appearance of merit — may arguably be the most crucial factor in Section 10 (6) (see Matter of Martinez v State of New York, 62 AD3d at 1226), it does not require Claimants to definitively establish the merits of the Proposed Claim. Rather, Claimants need to establish that the Proposed Claim is not "patently groundless, frivolous or legally defective, and the record as a whole must give reasonable cause to believe that a valid cause of action exists" (Sands v State of New York, 49 AD3d 444, 444 [1st Dept 2008]).

Initially, Claimants do not argue that the claims of physical and emotional injuries alleged to have been sustained by Christine Cox, Frederick Hall and Shamia Hall and alleged to have been caused by the untimely death of Mr. Velez, have the appearance of merit. In any event, the Court concludes that these claims lack the appearance of merit because neither Christine Cox, Frederick Hall or Shamia Hall have alleged "contemporaneous or consequential physical injury (see Johnson v State of New York, 37 NY2d 378, 381 [1975]), or that [they were] within the zone of danger and that [their] emotional injuries resulted from contemporaneous observation of [*5]serious injury or death caused by defendant's negligence (Johnson v Jamaica Hosp., 62 NY2d 523, 526 [1984])" (Maracallo v Board of Educ. of City of NY, 21 AD3d 318, 319 [1st Dept 2005]). To the extent that the Proposed Claim can be read to assert derivative claims based on Mr. Velez's conscious pain and suffering, these claims also lack the appearance of merit, as in New York there is no cause of action for either a child's loss of parental consortium (see De Angelis v Lutheran Med. Ctr., 58 NY2d 1053, 1055 [1983]), or for a parent's loss of a child's affection, companionship or society (see De Angelis v Lutheran Med. Ctr., 84 AD2d 17, 26 [2d Dept 1981], affd 58 NY2d 1053 [1983]; White v City of New York, 37 AD2d 603, 603 [2d Dept 1971]).

Likewise, the Court finds that Claimants have failed to establish that the State constitutional claims have the appearance of merit. A remedy for such alleged violations is available in the Court of Claims only where it is necessary to ensure the full realization of the claimant's constitutional rights and when no other "avenue of redress" is available (Martinez v City of Schenectady, 97 NY2d 78, 83 [2001]). Here, there is an adequate remedy in the Estate's cause of action for conscious pain and suffering sustained by Mr. Velez and invocation of a constitutional tort cause of action is unnecessary. To the extent that the Claim can be read to assert constitutional violations sustained by Christine Cox, Frederick Hall and Shamia Hall, Claimants have failed to allege facts that establish such constitutional violations.

In addressing the appearance of merit of the remaining cause of action — the conscious pain and suffering of Mr. Velez as a result of Defendant's negligence — in support of their application, Claimants state that the Proposed Claim is meritorious based on "numerous negligent and/or deliberately indifferent security failures by the DOCS staff — including but not limited to the availability of a nine-inch shank to an inmate with known violent (indeed, homicidal) propensities — that caused the conscious pain and suffering and untimely demise of FREDERICK VELEZ" (Affirmation of Jeffrey A. Rothman, paragraph 12). In opposition, Defendant argues that the Proposed Claim is without merit based on Claimants' conclusory allegations that the State knew of the perpetrator's violent propensities and based on Claimants' failure to annex an affidavit from an expert establishing how the State was negligent.[FN8] Defendant cites to Wyatt v State of New York (176 AD2d 574 [1st Dept 1991]) and McCrink v City of New York (296 NY 99 [1947]) for the proposition that the Proposed Claim lacks merit based on Claimants' failure to annex an expert affidavit. In Wyatt v State of New York, the State was found negligent based on a correction officer's misuse of a firearm when the State was aware that the officer had demonstrated a "propensity" to react violently and discharge his weapon in a prior non-criminal non-violent situation, but failed to revoke or restrict his ability to carry a weapon or to psychologically evaluate and counsel the officer (Wyatt v State of New York, 176 AD2d at 576). In McCrink v City of New York , an off-duty police officer shot and killed one citizen and seriously wounded another while intoxicated. The Court of Appeals held that the officer's disciplinary record, consisting of three prior findings of intoxication, was proof from which a jury might find that it was reasonably foreseeable that the continued retention of that officer involved potential danger to others.

In their reply, Claimants submit a photocopy of a news article from the Utica Observer-Dispatch, dated [*6]June 18, 2010, which states, in part, that "[w]hile incarcerated, Rodriguez's disciplinary records included mounting incidents of violence and fighting, as well as two incidents of weapons possession and a previous assault on another inmate in 1997, officials said" (Reply Affirmation of Jeffrey A. Rothman, Esq., Exhibit I).

It is clear that the State owes a duty of care to protect inmates within its custody from reasonably foreseeable risks of harm (see Sanchez v State of New York, 99 NY2d 247, 252-253 [2002]). However, the State is not an insurer of inmate safety and, in a negligence action commenced against the State based on personal injuries sustained in an inmate-on-inmate assault, a claimant is entitled to recover if he or she can establish that defendant knew or reasonably should have known that the claimant was at risk of harm (see Id. at 253). It is irrelevant that greater precautions could have been taken to prevent Claimant's injury if the injury was not reasonably foreseeable at the time of the incident (see Gordon v City of New York, 70 NY2d 839, 841 [1987]). Here, the Proposed Claim alleges, among other things, that Jose Rodriguez was known to Defendant to have vicious and violent propensities, a history of violent assaults, fighting, and two incidents of weapons possession (see Proposed Claim, paragraphs 31-33). The Proposed Claim also alleges that correction officers failed to take steps to separate the two inmates once the verbal argument ensued and failed to implement security measures (see Proposed Claim, paragraphs 37, 38, 41). Based on these allegations and the submissions before the Court, the Court finds that at this stage of the litigation, it cannot be said that the proposed cause of action alleging Mr. Velez's conscious pain and suffering based on Defendant's alleged negligence in failing to protect Mr. Velez lacks the appearance of merit and, accepting the allegations as true, there is reasonable cause to believe that such a cause of action may exist.

However, the Court reaches a different conclusion insofar as the Proposed Claim alleges a cause of action based on Defendant's alleged negligence in the hiring, screening, training, retention and supervision of its employees. To succeed on such a claim, a claimant must show that defendant "knew or should have known of the employee's propensity for the conduct which caused the injury" (Jackson v New York Univ. Downtown Hosp., 69 AD3d 801, 801 [2d Dept 2010] [[internal quotation marks and citation omitted]). While acknowledging that Claimants need not definitively establish the merits of their Claim at this juncture, other than conclusory allegations, Claimants failed to allege that Defendant had notice of a propensity of its employees to engage in the conduct that caused the injuries. Inasmuch as Claimants allege that the conduct of Defendant's employees occurred when they were acting "within the course and scope of [their] employment" (Proposed Claim, paragraph 22), the causes of action for negligent hiring, screening, training, retention and supervision lack the appearance of merit (see e.g. Gray v Schenectady City School Dist., 86 AD3d 771, 773-774 [3d Dept 2011]).

Based upon the foregoing and having considered the statutory factors enumerated in Court of Claims Act § 10 (6), the Court grants Claimants' Motion No. M-81432 to late file a Claim pursuant to Court of Claims Act § 10 (6) only to the extent that the Proposed Claim alleges a cause of action by Shikema Williams, as Administratrix of the Estate of Frederick Velez, for damages for Mr. Velez's conscious pain and suffering based on Defendant's alleged negligence in failing to protect Frederick Velez, and denies Claimants' motion with respect to all other causes of action alleged in the Proposed Claim. Accordingly, within sixty (60) days of the date of filing of this Decision and Order, Shikema Williams, as Administratrix of the Estate of [*7]Frederick Velez, shall file with the Clerk of the Court a Claim against the State consistent with this Decision and Order and serve a copy of that Claim upon the Attorney General personally or by certified mail, return receipt requested. In serving and filing the Claim, Claimant is directed to follow all of the requirements of the Court of Claims Act, including Section 11-a, regarding the filing fee, and the Uniform Rules for the Court of Claims.

Appendices:

The following papers were read and considered by the Court:

Notice of Motion, filed April 23, 2012;

Affirmation of Jeffrey A. Rothman, Esq., dated April 20, 2012, with Exhibits A - F;

Affidavit of G. Lawrence Dillon, Esq., dated May 16, 2012, with Exhibit A;

Reply Affirmation of Jeffrey A. Rothman, Esq., dated May 22, 2012, with Exhibits G, H and I. Footnotes

Footnote 1: Claimants' constitutional tort causes of action are premised on a violation of the New York State Constitution Article 1, Section 5 (freedom from cruel and inhumane treatment) and Section 6 (due process of law).

Footnote 2: Hedonic damages are those sustained as a result of the loss of the pleasures or the enjoyment of life (see 16 NY Prac § 21:20).

Footnote 3: Neither Christine Cox, Frederick Hall nor Shamia Hall, by her mother and natural guardian, Sabrina Hall, are identified as Claimants in either Notice of Intention served on the Attorney General.

Footnote 4: Likewise, to the extent that Claimants reference Court of Claims Act § 10 (8) (see Affirmation of Jeffrey A. Rothman, Esq., footnote 1) seeking permission to treat the Notice of Intention as a claim, that request is also time-barred with respect to a cause of action for wrongful death.

Footnote 5: The Appellate Division, Third Department has held that a Claimant "could file a valid notice of intention to file a claim for both the wrongful death action and action for pain and suffering before [the] appointment as administrator of [an] estate" (Tooks v State of New York, 40 AD3d 1347, 1348 [3d Dept 2007], lv denied 9 NY3d 814 [2007] [internal citation omitted]). However, "[i]n order to properly commence an action in the Court of Claims, the claim must be filed with the Clerk of the Court and served upon the Attorney General within the times provided for filing (see Court of Claims Act § 11 [a] [i]" (Id.).

Footnote 6: DOCS is now known as the Department of Corrections and Community Supervision (see L. 2011, c. 62, pt C, subpt A,§ 4, eff. March 31, 2011). Inasmuch as the Claim relates to acts that occurred prior to the name change, this Decision will refer to the Executive Agency by its former name.

Footnote 7: In their reply, Claimants submit the full sentencing transcript of Jose Rodriguez, which reveals that he pleaded guilty to and was convicted of manslaughter in the first degree.