Flannery v. State, Dept. of Corrections

• Decision Date: 05 October 1977
• Citation: 399 N.Y.S.2d 88,91 Misc.2d 797
• Parties: In the Matter of Gloria FLANNERY, as Administratrix of the Goods, Chattels and Credits of John Flannery, Deceased, Plaintiff, v. STATE of New York, DEPARTMENT OF CORRECTIONS, District Attorney of Bronx County, Ralph Dorf, Legal Aid Society, Ralph Popkin, Donald Zimmerman, Sidney Fine and Rockland State Hospital, "John Doe", "Richard Roe", "XYZ Corp.", the last 3 names being fictitious and intended to be persons, Defendants.
• Court: New York Court of Claims

Page 88

399 N.Y.S.2d 88

91 Misc.2d 797

In the Matter of Gloria FLANNERY, as Administratrix of the Goods, Chattels and Credits of John Flannery Deceased, Plaintiff, v. STATE of New York, DEPARTMENT OF CORRECTIONS, District Attorney of Bronx County, Ralph Dorf, Legal Aid Society Ralph Popkin, Donald Zimmerman, Sidney Fine and Rockland State Hospital, "John Doe", "Richard Roe", "XYZ Corp.", the last 3 names being fictitious and intended to be persons, Defendants.

Court of Claims of New York.

Oct. 5, 1977.

Goldstein & Martin by Helen E. Goldstein, New York City, for plaintiff.

Louis J. Lefkowitz, Atty. Gen. by William T. McCue, Asst. Atty. Gen., for the defendant, State of New York.

GERARD M. WEISBERG, Judge.

This is an application for permission to file a late claim pursuant to subdivision 6 of section 10 of the Court of Claims Act.

The claim is for conscious pain and suffering and wrongful death, arising out of the alleged murder of movant's decedent, John Flannery, by Kenneth Watson, a former mental patient in various institutions including Bellevue Hospital and Rockland State Hospital. Liability is predicated on the theory that the State, by its agents, was negligent in releasing and/or permitting the escape of Kenneth Watson, a person known to be dangerous, and that this negligence was the proximate cause of John Flannery's death.

The facts are that John Flannery was fatally stabbed on August 7, 1975, and his widow appointed Administratrix on October 2, 1975. Thereafter, on October 14, 1975 movant, through a firm of attorneys which she had retained, caused to be served a Notice of Claim upon the City of New York, the Department of Corrections of the City of New York and the New York City Health & Hospitals Corporation. No Notice of Claim was filed with the State at that time. An action in Supreme Court was subsequently commenced against those defendants, which action is presently pending.

During the course of the Supreme Court action, an order was made directing the defendants to furnish to movant's then attorneys certain records concerning Kenneth Watson's hospitalization and confinement. Those records were furnished during the period December, 1976 to January, 1977. Among them was correspondence indicating that Watson had been a patient at Rockland State Hospital in July, 1975, and further indicating that Rockland State Hospital was advised that Watson had previously been diagnosed as a chronic paranoid schizophrenic by Bellevue Psychiatric Hospital.

On July 11, 1977 Mrs. Flannery retained new counsel (her present attorneys), after having been advised that her previous attorneys wished to withdraw from the case. (Affidavit of Gloria Flannery, at page 2). Upon receipt and review of the files, her present attorneys determined that based upon information concerning Rockland State Hospital inter alia, an action should be commenced against the State of New York. Most expeditiously, on July 25, 1977, they moved this Court by Order to Show Cause ¹ for the relief sought herein. ²

However, that appears to be the first date upon which the State received any information that any claim was being made against it for the incident which occurred almost two years earlier and more than 18 months after movant had received her appointment as Administratrix.

Subdivision 2 of section 10 of the Court of Claims Act states:

"(a) claim by an executor or administrator of a decedent who left him or her surviving a husband, wife or next of kin, for damages for a wrongful act, neglect or default, on the part of the state, by which the decedent's death was caused, shall be filed within ninety days after the appointment of such executor or administrator, unless the claimant shall within such time file a written notice of intention to file a claim therefor in which event the claim shall be filed within two years after the death of the decedent. In any event such claim shall be filed within two years after the death of the decedent."

Having failed to comply with these statutory requirements, movant would have this Court exercise its discretion in permitting a late filing pursuant to subdivision 6 of section 10 of the Court of Claims Act. This recently amended statute (L.1976, ch. 280, eff. Sept. 1, 1976) provides, in part, as follows:

". . . (i)n determining whether to permit the filing of a claim pursuant to this subdivision, the court shall consider, 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 a timely claim or notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy."

The Court is thus required to weigh the factors specifically enumerated in the foregoing section, as well as any others which it deems relevant. The presence or absence of any one of these factors is not necessarily dispositive of the main issue since there is no requirement that each element set forth be satisfied. This represents a departure from prior law. Under the former subdivision 5 of section 10 of the Court of Claims Act, the claimant was required to demonstrate a reasonable excuse for not filing within ninety days; that prior to the expiration of the ninety days after the claim arose, the State had actual knowledge of the essential facts constituting the claim; and that the State was not substantially prejudiced by the delay in filing the claim. These requirements were conjunctive, and the failure to satisfy any one of them was fatal to granting the relief. (De Marco v. State of New York, 43 A.D.2d 786, 350 N.Y.S.2d 230, affd. 37 N.Y.2d 735, 374 N.Y.S.2d 619, 237 N.E.2d 131.) By contrast, the present law gives the Court the power to exercise its discretion in favor of a claimant notwithstanding a failure to demonstrate compliance with a particular criterion. (Sessa v. State of New York, 88 Misc.2d 454, 458, 388 N.Y.S.2d 513, 516 (Court of Claims, 1976).)

The removal of the former restrictions on judicial discretion by the legislature indicates to this Court a strong concern that litigants with meritorious claims be afforded their day in Court. The notion that persons injured by the wrongful actions of others should be compensated for their loss is fundamental to our system of jurisprudence. Nevertheless, it is also clear to this Court that its discretion in such matters is not totally unfettered. There are equally weighty factors which it must consider in order to do justice between the parties. With these considerations in mind the Court will discuss the specific factors enumerated in subdivision 6 of section 10 of the Court of Claims Act seriatim.

First, the delay in filing is not excusable. Movant's previous attorneys had the same documents concerning Rockland State Hospital upon which movant now seeks relief against the State. Whether the previous attorneys' failure to file a claim against the State was a result of inadvertence, mistake of law or fact, or error in judgment if error there was, such a failure does not constitute a reasonable excuse. (Matra v. State of New York, 52 A.D.2d 989, 383 N.Y.S.2d 461; Modern Transfer Company v. State of New York, 37 A.D.2d 756, 322 N.Y.S.2d 948; 500 Eighth Ave. Assoc. v. State of New York,30 A.D.2d 1010, 294 N.Y.S.2d 120.) Movant seeks to excuse the late filing on the theory that the information concerning Rockland State Hospital is in some sense newly discovered. It is, of course, new material, but only because movant changed her firm of attorneys. While this Court agrees with the proposition that "(t) he court in applying justice may on some occasions feel impelled to protect clients from their lawyers . . .", (Sessa v. State of New York, 88 Misc.2d 454, 460, 388 N.Y.S.2d 513, 517 (Court of Claims, 1976)), we are not persuaded that this case merits such an exercise of our discretion in view of movant's failure to satisfy this Court with respect to the other factors which it must consider under subdivision 6 of section 10 of the Court of Claims Act. Under these circumstances, movant is bound by her former attorneys' failure to timely file.

It is, however, noteworthy that even under the former rule concerning late filings, this Court did sometimes overlook attorney's inadvertence where it was clear that the State had received adequate notice and opportunity to investigate the claim. Such a case was Pagan v. State of New York, 31 Misc.2d 235, 223 N.Y.S.2d 341 (Court of Claims, 1962), a wrongful death action in which claimant's previous attorney had failed to file a claim until he became aware that another attorney had filed three claims arising out of the same automobile accident. The Court granted a motion for late filing brought on by claimant's new attorney, who had filed the other three claims mentioned, saying:

"(a)lthough the claimant's original attorney might have been more diligent in making inquiries which would have revealed the possible liability of the State, nevertheless under the circumstances of this case, the court accepts his excuse as reasonable particularly in view of the abundant knowledge the State has of all the facts, circumstances and persons involved in that tragic accident. (See Farnham v. State of New York, 195 Misc. 380, 90 N.Y.S.2d 165, affd. 277 App.Div. 1015; Matter of Levensfeld v. State of New York, 14 Misc.2d 936, ...