Opinion
# 2017-040-019 Claim No. NONE Motion No. M-89165
02-10-2017
L.V., as Natural Parent of E.V., a Person who is intellectually disabled v. THE STATE OF NEW YORK
McMAHON, KUBLICK & SMITH, P.C. By: Ralph S. Alexander, Esq. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Sean B. Virkler, Esq., AAG
Synopsis
Motion to late file a claim pursuant to CCA § 10(6) denied as Movant lacks legal capacity to commence action on behalf of daughter and daughter appears to have a legal disability pursuant to CCA § 10(5) to toll the statute of limitations.
Case information
| UID: | 2017-040-019 |
| Claimant(s): | L.V., as Natural Parent of E.V., a Person who is intellectually disabled |
| Claimant short name: | L.V. |
| Footnote (claimant name) : | Because this proposed claim involves a victim of a sexual offense, the caption has been amended to give the Movant a fictitious name in order to protect her and her daughter's identities. The Chief Clerk is directed to seal the file in Motion No. M-89165 pursuant to Civil Rights Law § 50-b (see Civil Rights Law §§ 50-b [1], 50-c [private right of action for wrongful disclosure of victim of sexual offense]). |
|---|---|
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-89165 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | McMAHON, KUBLICK & SMITH, P.C. By: Ralph S. Alexander, Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Sean B. Virkler, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | February 10, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, the application of Movant, LV, to serve and file a late Claim pursuant to Court of Claims Act § 10(6) is denied.
The proposed Claim, attached to the Motion papers as Exhibit B, alleges that, Movant is the mother of EV, a person who is intellectually disabled; that the first incident complained of occurred beginning in or about December 2013 through early 2014 at Route 5 Individualized Residential Alternative home in Vernon, New York (hereinafter, "Route 5 IRA"); that EV, who was born on September 3, 1996, was 17 years old at the time she was admitted to the Route 5 IRA following a hospitalization at SUNY Upstate Medical Hospital from June 2013 to November 2013, for an illness which left her paralyzed from the waist down. It is asserted that EV was admitted to Route 5 IRA as she had a Full Scale Intelligence Quotient of 63 and was deemed mentally retarded by a clinical psychologist with the Central New York Developmental Services Office in February 2006. Movant alleges, upon information and belief, that staff of the Route 5 IRA failed to properly and timely turn and/or reposition EV in her bed in order to prevent pressure sores. As a result, EV developed a decubitus ulcer on her buttock/back area, which has required hospitalization, multiple surgical interventions, with infections from sepsis and intravenous medications.
It is further alleged that, sometime after a hospitalization at Oneida Healthcare Center to treat her infected decubitus ulcer and admission to Sunset Nursing and Rehabilitation Center in Boonville, New York, a skilled nursing and rehabilitation facility, EV was transferred to Oneida Road IRA 3 in Rome, New York, where staff again failed to properly turn and/or reposition her, causing a new pressure sore, or an exacerbation and/or reopening of the previous sore of the buttock/back area, with continued infection/sepsis which necessitated further medical and/or surgical intervention, including skin grafts.
Movant asserts that the State of New York had actual and/or constructive notice that EV would require repositioning and/or turning every few hours to prevent pressure ulcers due to her paralysis. Despite such notice and/or knowledge of EV's medical condition, Movant alleges that the State negligently and carelessly failed to reposition EV, resulting in the decubitus ulcer.
The proposed Claim further alleges that, on or about May 11, 2016, while admitted to Oneida Road IRA 3, EV was subjected to conduct that constituted abuse or neglect as a staff member failed to ensure EV would receive proper supervision; and that, upon information and belief, on June 16, 2016, EV was subjected to abuse of an emotional, physical and/or sexual nature at Oneida Road IRA 3, but no further information regarding that incident has been provided to Movant, LV; that, upon information and belief, the State had actual and/or constructive notice that EV was vulnerable to abuse, physical violence, mistreatment and/or neglect due to her limited physical and mental capacities; that, despite such notice and/or knowledge of EV's vulnerability, the State negligently and carelessly allowed EV to be alone with certain unknown staff members who subjected her to abuse, physical violence, mistreatment and/or neglect.
Movant seeks damages as a result of the negligent medical and/or nursing care and inappropriate conduct inflicted upon EV by the State; negligent supervision of EV; negligent training, supervision, retention, hiring and control of staff employed at Route 5 IRA and Oneida Road IRA 3; and other State law tort claims as the evidence may support upon discovery at a later time.
In addition, Movant alleges that the State is vicariously liable pursuant to the doctrine of respondeat superior for violations of State laws torts committed by and through its agents, officers and/or employees.
In his affidavit, submitted in support of the Motion, Movant's counsel asserts that Movant contacted his office on August 22, 2016 regarding this matter and "[a]t that time, it was detrmined that a guardianship for [EV] had never been established. As such, [LV] does not have standing to initiate the Claim at this time and [EV] lacks mental capacity to do so, as set forth in the accompanying affidavit of [LV]. [LV] intends on petitioning the Surrogate's Court [Onondaga County] to be appointed Guardian of [EV] based on her mental disability. As such, Claimant moves on the basis of [EV's] age and the tolling provision" of Court of Claims Act § 10(5) (Affidavit of Ralph S. Alexander, Esq., ¶ 5).
Thus, Movant, LV, concedes she lacks the legal capacity to properly commence an action against the State of New York on behalf of her daughter and, therefore, the Motion for permission to late file a Claim is denied (see Lichtenstein v State of New York, 93 NY2d 911 [1999], affg 252 AD2d 921 [3d Dept 1998]; Liddell v State of New York, 182 Misc 2d 133 [Ct Cl 1999], affd 278 AD2d 928 [4th Dept 2000]; Docter v State of New York, UID No. 2012-040-015 [Ct Cl, McCarthy, J., Mar. 29, 2012]).
The Court notes that Court of Claims Act § 10(5) provides "[i]f the [C]laimant shall be under legal disability, the [C]laim may be presented within two years after such disability is removed." CPLR 208 provides that, where a person entitled to commence an action is under a disability because of "infancy" or "insanity" at the time the cause of action accrues, the time for commencement of an action shall, with some limitations not applicable here, be extended by the period of disability (see also Court of Claims Act § 9[9]; Henry v City of New York, 94 NY2d 275, 279-280 [1999]; Boland v State of New York, 30 NY2d 337 [1972]; Weber v State of New York, 267 App Div 325 [1944]). Insanity has been interpreted to mean those "who are unable to protect their own legal rights because of an overall inability to function in society" (Matter of Cerami v City of Rochester School. Dist., 82 NY2d 809, 812[1993], quoting McCarthy v Volkswagen of America, 55 NY2d 543, 548 [1982]). Courts have allowed for tolling of the statute of limitations pursuant to § 10(5), based upon the placement of a claimant in a OMRDD (Office of Mental Retardation Development and Disability) facility and a review of psychiatric records (see Bowles v State of New York, 208 AD2d 440, 442 [1st Dept 1994]). In Bowles, the very placement of the claimant at an OMRDD facility recognized the fact that there had been a medical determination that he was mentally retarded.
Here, the record suggests that EV suffers from a legal disability sufficient to toll the Statute of Limitations such that a Court of Claims Act § 10(6) Motion for permission to file a Claim late will not be necessary if LV complies with the service and filing requirements of the Court of Claims Act within two years of being appointed guardian of her daughter and she is granted the power to bring a lawsuit on behalf of EV.
Therefore, Movant's Motion for permission to serve and file a Claim late pursuant to Court of Claims Act § 10(6) is denied without prejudice.
February 10, 2017
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered on Movant's request for permission to serve and file a late Claim pursuant to Court of Claims Act § 10(6): Papers Numbered Notice of Motion, Attorney Affidavit & Exhibits Attached 1 Affirmation in Opposition 2 Reply Affidavit & Exhibit attached, & Attorney Reply Affidavit 3