Jenkins v. State

• Decision Date: 28 April 1983
• Citation: 462 N.Y.S.2d 766,119 Misc.2d 144
• Parties: Marion JENKINS, Jr., Agnes Jenkins, Edward Jenkins, Henry Jenkins and Mary Lee Taylor, individually and as legal guardian of Marion, Jenkins, Sr., Claimants, v. The STATE of New York, Defendant.
• Court: New York Court of Claims

Page 766

462 N.Y.S.2d 766

119 Misc.2d 144

Marion JENKINS, Jr., Agnes Jenkins, Edward Jenkins, Henry Jenkins and Mary Lee Taylor, individually and as legal guardian of Marion, Jenkins, Sr., Claimants, v. The STATE of New York, Defendant.

Court of Claims of New York.

April 28, 1983.

Kerner & Zucker by Harold Kerner, New York City, for claimants.

Robert Abrams, Atty. Gen., by Raymond LaScala, Asst. Atty. Gen., for defendant.

FRANK S. ROSSETTI, Judge.

The instant motion is for permission to file a claim out of time. It arises from the erroneous notification by a State mental hospital of the "death" of George Jenkins, the son of claimants Marion and Agnes Jenkins and the brother of the other claimants. The damages claimed include not only the personal suffering of each claimant, but also funeral and other expenses incurred in shipping the body (of another man as it turned out) to the said mother's home in Louisiana. The proposed claim is grounded in negligence and accrued at the earliest on February 5, 1980, when claimant Edward Jenkins was notified by a doctor of Manhattan Psychiatric Center that George Jenkins had died while a patient there. ¹ Actually, George Jenkins did not die, but another patient who used the same name as an alias did. The hospital mistakenly referred to George Jenkins' file when the other patient died and notified the claimant brother as aforesaid.

We observe initially that this motion, received by the State January 31, 1983, was timely made within the applicable three year period after accrual since the earliest possible accrual date was the aforesaid February 5, 1980 date. (See Court of Claims Act, § 10, subd. 6; CPLR 214, subd. 5; 307; 2211.) The court thus acquired jurisdiction of the motion at said time of service (see Matteo v. State, 203 Misc. 523, 524-525, 116 N.Y.S.2d 108; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 2211, C2211:4) and may grant permission to file a claim subsequent to said three year period, the permission and filing being deemed as of the date of service (see Thompson v. State, 258 App.Div. 758, 14 N.Y.S.2d 717).

Considering the requisite factors on this application (see Court of Claims Act, § 10, subd. 6), we first find that claimants have failed to demonstrate that the delay in filing a notice of intention or claim was excusable. The excuses raised were that claimants were nonresidents, widely dispersed (claimant Agnes Jenkins lives in Louisiana & the other claimants in Oakland & San Francisco, California), one (Marion Jenkins) was an incompetent and all were unfamiliar with New York law. Appellate law has found the first and last said excuses not reasonable ones. (See, e.g., La Bar Truck Rental v. State, 52 A.D.2d 1007, 383 N.Y.S.2d 432.) As to claimants' dispersion, they must have discovered the subject error (i.e., when it was confirmed George Jenkins was in fact still alive) before February 26, 1980, since that was the date the State wrote Agnes Jenkins apologizing for the mistake. ² Thus they had about 70 days in which to timely file a notice of intention or claim. We find this to have been enough time notwithstanding their separation. As to the father's incompetenc we find that irrelevant on the issue of excuse since he could not legally have filed a notice of intention or claim in any event. (See CPLR 1201.)

Turning to the other five factors, however (see Court of Claims Act, § 10, subd. 6), we find them all favorable to claimants' application. The noted February 26, 1980 letter from the State irrefutably establishes notice and an opportunity to investigate. Said letter also appears to indicate the merit of the claim, a claim specifically approved by New York's highest court. (See Johnson v. State, 37 N.Y.2d 378, 372 N.Y.S.2d 638, 334 N.E.2d 590). The defendant raises the absence of medical affidavits establishing causality as grounds for finding no merit, but its reliance on Goldstein v. State, 42 [sic ] N.Y.S.2d 63, is misplaced. ³ To quote Johnson v. State, supra, there is " 'an especial likelihood of genuine and serious mental distress, arising from the special circumstances ....' " (Id., 37 N.Y.2d at p. 382, 372 N.Y.S.2d 638, 334 N.E.2d 590.) We think the facts at hand are clearly the type of unordinary situation where it is readily apparent to a layman that some emotional distress would be caused to claimants by the subject events. (Cf., e.g., Monahan v. Weichert, 82 A.D.2d 102, 107, 442 N.Y.S.2d 295.) The nature and extent of such distress may require medical evidence, but that goes to the amount of claimants' damages, not their existence. The amount of damages is a matter for proof at trial, not here. On this application, we believe it sufficient that there be a showing of the existence of mental distress, whatever its extent, proximately caused by the alleged negligence. Such is properly evidenced by the "special circumstances" at bar. To find otherwise would deny common human experience. It is also noted that two of the claimants incurred the said funeral and other expenses in addition to personal suffering damages. Therefore, we find the claim has the appearance of merit.

We observe with respect to merit that claimant Edward Jenkins was apparently the only one directly notified by the State and it is unclear whether the other claimants fall within the rationale of Johnson (only the appeal of the direct recipient of the erroneous death notification was involved in the Court of Appeals decision in Johnson ). However, the message to Edward Jenkins was obviously made with the knowledge if not the intent that it would be communicated to members of George Jenkins' immediate family, to wit, his mother, father and brother and sister, the other claimants herein. Damage to them was thus foreseeable and hence "within the 'orbit of danger' and ... 'orbit of duty' ...." (Johnson v. State, supra, 37 N.Y.2d at p. 383, 372 N.Y.S.2d 638, 334 N.E.2d 590.) Absent apposite appellate authority to the contrary, we think fundamental negligence principles should be applied and they indicate the claims of said other claimants have the appearance of merit. (See, e.g., Palsgraff v. L.I.R.R. Co., 248 N.Y. 339, 344, 345, 162 N.E. 99.) Only permission to late file is involved here. No final or conclusive determination of the ultimate merits of said claims is being made. Such would be manifestly inappropriate on the sparse factual record on this motion, particularly where neither party raised the issue. It is clear in any event that Edward Jenkins has a meritorious claim and granting the motion is thus proper at least as to him. A motion for dismissal is the appropriate vehicle for the determination of the specific claims of said other claimants. We do not think a nisi prius court on a motion such as this is the proper venue or situation for making the legal policy judgments inhering in such a determination.

The next factor, prejudice, is facially somewhat troublesome because of the extensive time that has elapsed since the subject events occurred, to wit, just under 3 years (see Court of Claims Act, § 10, subd. 6; CPLR 214, subd. 5). However, any necessary evidence was not shown to be transitory (cf. Malek v. State, App.Div., 460 N.Y.S.2d 165 [3rd Dept, 1983]; Gatti v. State, 90 A.D.2d 840, 456 N.Y.S.2d 82 [2d Dept, 1982] ) and defendant gave no indication that the State employees or records involved were unavailable. Its unsupported conclusory statement alleging prejudice is not...