Mattaway v State of New York

[*1] Mattaway v State of New York 2018 NY Slip Op 51441(U) Decided on April 30, 2018 Court Of Claims Weinstein, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 30, 2018
Court of Claims

Lisa Mattaway, Claimant,

against

The State of New York, THE NEW YORK STATE OFFICE OF COURT ADMINISTRATION and NEW YORK STATE COURT OFFICERS JOHN DOE and JANE DOE, whose true identities are presently unknown, Defendants.



130738



For Claimant:

Pavlounis & Sfouggatakis, LLP

By: Andrew Sfouggatakis, Esq.

For Defendants:

Eric T. Schneiderman, New York State Attorney General

By: Suzette Corinne Merritt, Assistant Attorney General
David A. Weinstein, J.

The matter before me arises out of the allegation by claimant Lisa Mattaway, a Senior Assistant District Attorney in the Bronx, that on September 21, 2015, she was assaulted by a criminal defendant in the Bronx County Courthouse due to the negligence of court officers who failed to prevent the attack. The efforts by Ms. Mattaway to present her claim to this Court have a torturous legal history, which has given rise to claimant's present motion that her previously served Notice of Intention ("NOI") be treated as a claim, or in the alternative for leave to file a [*2]late claim. Defendant State of New York opposes the motion.

That relevant procedural background is as follows:

On December 1, 2015, claimant served a verified NOI [FN1] (see Mot Ex A), and she served and filed a claim the same day (id. Ex B). Both documents stated that the court officers escorting claimant's alleged assailant were negligent in that they failed to sufficiently control and supervise that individual, and both say that the incident occurred at about 1:00 p.m. on the day in question, by the elevator bank on the first floor of the Courthouse.[FN2] Neither pleading identified the officers, and the claim indicated that their identities were unknown (id. Ex B ¶ 7). These documents contained certain differences, however. The NOI seeks $2.5 million in damages; the claim $1 million. The NOI did not name the assailant, while the Claim identified her as Shaquana Motley-Logan. The NOI identifies claimant's injuries as harm to her abdomen, resulting in a hernia and surgery, while the claim provides no specifics in this regard. Finally, although the nature of the allegations as to negligence are essentially the same — that the officers failed to control Ms. Motley-Logan — they are presented differently. The NOI provides a long list of boilerplate allegations, while the claim says briefly that the officers owed a duty to properly escort and restrain the defendant, and they violated that duty [FN3] (id. Ex A ¶ 4 & Ex B ¶¶ 3, 5-6).

Defendant moved to dismiss the claim on the ground that it was not properly verified. I granted that motion by Decision and Order dated May 13, 2016 (the "May 13 D & O"). Briefly, I found that after the defendant raised the issue of improper verification, claimant did not follow the procedures set forth in the CPLR for remedying the defect, but rather re-served a properly verified claim via two means impermissible under the Court of Claims Act: Federal Express and facsimile. In the absence of a properly served verification, I dismissed the claim.

In its response to defendant's motion, claimant also made an "application for an extension of time to serve and file a claim or treat the claim as timely nunc pro tunc" (May 13 D & O at 5). I found that such relief is "not available in the Court of Claims," and to the extent that the application could be construed as one for late claim relief under Court of Claims Act § 10(6), claimant had failed to address any of the factors listed in that provision (id. at 5-6). In my order of dismissal, however, I stated the following: "Nothing in this order shall be read to bar claimant [*3]from properly filing and serving a timely claim to the extent such remains permissible in light of the NOI she has served, or from seeking late claim relief in accordance with the requirements of section 10(6)" (id. at 6).

According to counsel's affirmation in support of its present motion, claimant did indeed serve a new claim two weeks later, verified by Ms. Mattaway (Aff in Supp ¶ 8 & Ex B). But while the claim was timely served, it was never filed, a defect counsel attributes to the process server's failure to follow counsel's direction (see Aff in Supp ¶ 8). Defendant answered the claim, and made discovery demands (id.). At some unspecified point, claimant learned of the problem, and filed a new claim "immediately" on December 20, 2017 (id. ¶ 9). That claim has been given the number 130738 and is pending before the Court.[FN4] By that point, however, the two-year period for filing a negligence claim post-accrual when an NOI had been served, had already expired (see Court of Claims Act ¶ 10[3]).

Claimant then brought the present motion, seeking to have its NOI treated as a claim under Court of Claims Act § 8(a). In the alternative, claimant asked the Court to "grant[] the Claimant an extension of time [in] order to file a Claim" — by which it presumably seeks late claim relief under section 10(6).[FN5]

In regard to the application to have the NOI treated as a claim, such relief is provided for by section 10(8)(a) of the Court of Claims Act, as follows:

"A claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The court shall not grant such application unless: it is made upon motion before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant."

This motion was brought within three years of accrual, and so was made within the time provided under the CPLR for negligence actions seeking to recover for personal injury (see CPLR 214). Further, the NOI was timely served within the 90-day window set forth in Court of Claims Act § 10(3). The questions before me, then, are whether the NOI "contains facts sufficient to constitute a claim." and whether granting the application would prejudice defendant.

In deciding the first question, courts have looked to whether the NOI meets the requirements of Court of Claims Act § 11(b)[FN6] (see Edens v State of New York, 259 AD2d 729, 730 [2d Dept 1999] [denying 10(8) motion for failing to state sufficient facts, citing section 11(b)]; Fernandez v State of New York, 2010 WL 11235613, *1 [Ct Cl, 2010] [denying relief under section 10[8][a] when notice of intention did not specify the location of the incident sufficiently for purposes of Court of section 11(b)]). Under section 11(b), the claim must at a minimum "state the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed." In general, the claim must "'provide a sufficiently detailed description of the particulars of the claim to enable [defendant] to investigate and promptly ascertain the existence and extent of [its] liability'" (Sommer v State of New York, 131 AD3d 757, 757-758 [3d Dept 2015], quoting Flemming v State of New York, 120 AD3d 848, 848 [3d Dept 2014]).

Here, the NOI clearly presents sufficient detail and precision in regard to the time and location of the incident, and sets forth the nature of damages sought. Defendant contends, however, that it does not adequately state the nature of the claim, because it names neither the allegedly negligent court officers nor the individual who assaulted Mattaway, does not set forth "what manner the claimant was injured nor how the state was negligent," generally "lacks specificity" and did not provide defendant with sufficient information to investigate the incident (Aff in Opp ¶¶ 5, 7). Further, the State argues that because it has been unable to appropriately investigate the claim without such information, it has suffered prejudice warranting denial of the section 10 (8) application (id. ¶ 7).

Although the issue is not free from doubt, I do not find defendant's arguments persuasive, and hold that the NOI meets the 11(b) threshold. In regard to the nature of the State's negligence, claimant alleged that the corrections officers "negligently and carelessly failed to supervise the criminal defendant in their custody," and allowed her to assault claimant (Aff in Supp Ex A ¶ 4). Given that the injury is alleged to have occurred when a prisoner being escorted suddenly attacked Ms. Mattaway, it is hard to know what other specifics claimant could have offered as to what the officers did wrong (see Davila v State of New York, 140 AD3d 1415, 1417 [3d Dept 2016] [general allegation of State's negligence in connection with fire sufficient under the "particular circumstances" of the case, where all relevant information is in the hands of the State, and negligence could be "reasonably infer[red]"]). Moreover, I find no authority for the proposition that the assailant and court officers must be named for claimant to sufficiently plead a claim of this nature (see Rhodes v State of New York, 245 AD2d 791, 792 [3d Dept 1997] [notice of intention sufficiently pled despite the fact that it did not "identify the correction officer who allegedly left his assigned post," as it "provided sufficient details to permit a prompt investigation into the incident"]).

Claims presenting a comparable level of detail have been found sufficient under section [*4]11(b). For example, in Santos v State of New York, 291 AD2d 851 [4th Dept 2002]), claimant alleged that he was attacked by another inmate in the prison yard, and "the correction officers were negligent in supervising the inmates in the yard inasmuch as they allowed an inmate to be armed and to attack him" (id. at 851). The Court found that this sufficiently alleged the State's negligence for purposes of 11(b). And in Morris v State of New York (27 AD3d 282 [1st Dept 2006]), the Appellate Division found that an allegation by a prisoner in a notice of intention that she had been sexually assaulted by a correction officer met the 11(b) requirements as to negligent hiring and training, since it "clearly alleges her constitutional rights were violated by respondent's failure to protect her from sexual assault by its employee while in its custody," and negligent hiring, supervision and training by the State" were "reasonably inferred from such allegations" (id. at 283). Nothing in these opinions indicates that any more detail as to the State's negligence is required than that contained in Mattaway's NOI.

In contrast, those cases where the pleading has been found deficient in stating the nature of the claim involve much more vague allegations (see Flemming, 120 AD3d at 848 ["general allegations related to a conspiracy, and the failure of certain correction officers to investigate an unspecified complaint" insufficient to meet section 11(b)]); Morra v State, 107 AD3d 1115, 1116 [3d Dept 2013] [claim that State failed to supervise investigator in connection with defendant's prosecution insufficient, when claim "omitted completely any facts giving rise to or regarding the nature of the criminal charges that were brought against claimant, or specific facts regarding the State Police investigator's conduct," and gave only a broad description of the time frame and location]; McDowell v State of New York, 230 AD2d 894, 895 [2d Dept 1996], lv denied 91 NY2d 801 [1997] [notice of intention insufficient to serve as a claim when it alleged inmate injured loading truck, but did not reference any negligence by defendant]).

As to prejudice, the burden of showing such is on the defendant (see Schwartzberg v State of New York, 121 Misc 2d 1095, 1099-1100 [Ct Cl, 1983], affd 98 AD2d 902 [3d Dept 1983]). Here, defendant maintains that because claimant did not identify the correction officers alleged to be negligent, it could not conduct interviews of them (Aff in Opp ¶ 7). Further, it contends that because the NOI did not name the assailant, the State "could not obtain any arrest reports or information pertaining to the prosecution of the alleged assailant, if in fact there were any court proceedings as a result of this alleged incident" (id.).

In a reply affirmation, claimant points out that the name of the assailant was revealed in the original, dismissed claim, which was served on the same day as the NOI (Reply Aff ¶ 3). Therefore, defendant had such information for investigative purposes, and the State suffered no prejudice from its omission in the NOI (see Lufker v State of New York, 239 AD2d 565, 566 [2d Dept 1997] [motion to treat notice of intention as claim should have been granted; although notice did not identify location with specificity in the NOI, State had the information from a contemporaneous report]). As to the court officers, claimant denies knowledge of their names, and the State is in any case better placed to determine their identity. Finally, to the extent claimant's allegation is accurate, and a prisoner escorted in a state courthouse evaded supervision sufficiently to assault an assistant district attorney, the State had ample, independent reason to investigate regardless of whether claimant's papers provided all of the details (see Espinal v State of New York, 159 Misc 2d 1051, 1057 [Ct Cl 1993] ["the occurrence of an assault within a prison, particularly one which results in serious injury, also gives notice of the injury and both [*5]opportunity and motivation for the State to investigate the underlying facts").

While there has been substantial passage of time since the incident, I cannot find that this alone is sufficient to show prejudice. Defendant was informed of the factual basis of the claim within 90 days thereof by the NOI, and the claim served at the same time identified the specific assailant (see Reynolds v State of New York, UID No. 2002-018-184 [Ct Cl, Fitzpatrick, J, Nov 21, 2002] [no prejudice when notice of intention adequately appraised State of nature of claim within 90 days of accrual]). And prejudice cannot be presumed from the passage of time alone (see Jenkins v State of New York, 119 Misc 2d 144, 148 [Ct Cl, 1983] ["prejudice should not be presumed in every case merely from the passage of time"]). If that were so, there would be no point to applying section 10(8) to negligence claims at all, as relief in this context is only necessary when the two-year service window gained through service of the NOI has already expired.

For all these reasons, the motion to treat the NOI as a claim shall be granted, thereby rendering claimant's application for late claim relief academic.

Finally, as a result of this decision, the pending claim no. 130738 will be duplicative and should be be dismissed.[FN7] I note that while the caption of this claim contains various extraneous parties besides the proper defendant, the State of New York, the NOI properly lists only the State, and thus the caption need not be amended.

Accordingly, claimant's motion to treat its notice of intention as a claim pursuant to Court of Claims Act § 10(8) is GRANTED to the extent that her previously served Notice of Intention is hereby deemed a claim, and claimant shall file said NOI in its precise present form and wording, except that it shall be captioned as a "Claim," with the Clerk of the Court of Claims within 30 days from the date of filing of this Decision and Order.

Claimant's application for late claim relief and otherwise to extend the deadlines set forth in the Court of Claims Act is denied as moot.

Claim No. 130738 is dismissed sua sponte, as duplicative.

Upon the filing of the Claim, the Court shall schedule a pre-trial conference by separate letter.

Albany, New York

April 30, 2018

DAVID A. WEINSTEIN

Judge of the Court of Claims

Papers Considered:

1. Claimant's Notice of Motion, dated December 21, 2018, Affirmation in Support with Exhibits A through G annexed thereto;

2. Defendant's Affirmation in Opposition, dated January 28, 2018; and

3. Claimant's Affirmation in Reply, dated February 5, 2018. Footnotes

Footnote 1:Claimant's counsel avers that the NOI was both served and filed (see Aff in Supp ¶ 4). The Court of Claims Act makes provision only for service of a notice of intention (see Court of Claims Act §§ 8[a], 10), and the copy of the document included with the motion bears no file stamp from the Court (see Mot Ex A). Since service is all that matters for purposes of this motion, I need not determine whether the NOI was actually filed.

Footnote 2:The NOI says claimant was assaulted on the first floor; the claim states that this occurred in the "lobby." Presumably, these refer to the same location.

Footnote 3:Why claimant filed a notice of intention — whose purpose is to extend the time to file and serve a claim — on the same day as the claim itself, and why claimant's counsel chose to draft two entirely different documents to present the same allegations is perplexing, but these are not questions that need be answered for present purposes.

Footnote 4:To complicate matters further, the affirmation in opposition erroneously bears Claim No. 127215. That is the claim that was dismissed by the Court in my May 5 D & O.

Footnote 5:Claimant also asks that I extend the Court of Claims Act filing deadlines pursuant to CPLR 2001 (Aff in Supp ¶ 14), which provides that "the court may permit a mistake, omission, defect or irregularity, including the failure the purchase or acquire an index number or other mistake in the filing process, to be corrected, upon such terms as may be just.. . .. " CPLR 2001 cannot be used, however, to avoid a defect in subject matter jurisdiction (MacLeod v County of Nassau, 75 AD3d 57, 65 [2d Dept 2010]). The failure to comply with the Court of Claims Act's time limitations for filing creates such a jurisdictional defect (Bennett v State of New York, 106 AD3d 1040, 1041 [2d Dept 2013]).

Footnote 6:The facts also must give rise to a claim on which relief may be granted (see Artale v State of New York, 140 AD2d 919, 919 [3d Dept 1988]). Here, defendant does not contest that the facts alleged plead a cognizable cause of action, but rather that they are insufficiently specific to meet the Court of Claims pleading requirements.

Footnote 7:It is also, as noted above, untimely filed.