McDonnell v. State

206 N.Y.S.3d 852

Theresa MCDONNELL, Claimant,

v.The STATE of New York, Defendant.

Court of Claims of New York.

Decided on October 4, 2023

For Claimant: HELD & HINES, LLP, By: Philip M. Hines, Esq.

For Defendant: LETITIA JAMES, New York State Attorney General, By: Albert E. Masry, Assistant Attorney General

Zainab A. Chaudhry, J.

In this medical malpractice action, claimant Theresa McDonnell, an individual incarcerated in the custody of the Department of Corrections and Community Supervision (DOCCS) at Bedford Hills Correctional Facility, alleges that DOCCS medical personnel failed timely to diagnose and treat a recurrence of her cervical cancer. Defendant moves to dismiss the claim for lack of subject matter jurisdiction on two independent grounds. First, defendant contends that the claim fails to specify the time when the claim arose pursuant to Court of Claims Act (CCA) § 11 (b). Second, defendant asserts that the claim was not timely served and filed in accordance with CCA §§ 10 and 11 (a) in any event.¹

Claimant opposes the motion. For the reasons stated below, the motion is granted.

The claim alleges that claimant entered DOCCS custody on April 30, 2018. She has a "lengthy and complex" medical history, including a 2015 diagnosis of cervical cancer, which recurred in 2016 (Claim, ¶ 17). The claim states that "[i]n or about October 2020" an ultrasound of claimant’s abdomen revealed a "large mass from the urinary bladder" (id., ¶ 20). She had been, experiencing symptoms related to the mass "for at least six months (since in or about April 2020) before the ultrasound was ordered and performed," including abdominal pain, distension, and bloating, as well as groin pain and a change in bowel pattern (id.). Imaging studies and biopsies showed that the mass contained malignant cells and, "[b]y January 2021," it was confirmed that claimant’s cancer had metastasized, with lymph node involvement (id., ¶ 22). Paragraph 23 of the claim alleges that "[f]rom on or about April 30, 2018 to the present"—that is, the day claimant was first incarcerated up until the day the claim was filed—defendant’s negligent failure timely to diagnose and treat her condition caused her to sustain injuries, including recurrence of the cancer and the onset of the underlying symptoms.

[1–3] Turning to defendant’s first ground for dismissal, the pleading requirements of CCA § 11 (b) are substantive conditions on the State’s waiver of sovereign immunity from liability and, as such, a claimant’s failure to comply with them deprives the Court of subject matter jurisdiction (see Kolnacki v. State of New York, 8 N.Y.3d 277, 280-281, 832 N.Y.S.2d 481, 864 N.E.2d 611 [2007]; Lepkowski v. State of New York, 1 N.Y.3d 201, 207, 770 N.Y.S.2d 696, 802 N.E.2d 1094 [2003]). Among other things, section 11 (b) requires that the claimant plead the "time when … [the] claim arose" (CCA §11 [b]). The "guiding principle" underlying this substantive pleading requirement (and the others) is that the information must be sufficiently definite "to enable the State to investigate the claim[ ] promptly and to ascertain its liability under the circumstances" (Lepkowski, 1 N.Y.3d at 207, 770 N.Y.S.2d 696, 802 N;E.2d 1094 [internal quotation marks and ellipsis omitted]). And although a claim need not be pled with "absolute exactness" (Kimball Brooklands Corp. v. State of New York, 180 A.D.3d 1031, 1032, 121 N.Y.S.3d 129 [2d Dept. 2020] [alteration and internal quotation marks omitted]), the State is not required "to ferret out or assemble, information that section 11(b) - obligates the claimant to allege" (Lepkowski, 1 N.Y.3d at 208, 770 N.Y.S.2d 696, 802 N.E.2d 1094).

[4] To plead adequately when a claim arose, where a claim is based upon a single incident of negligence that occur[s] on a "discrete date," a claimant must "allege the ‘date of the mishap’ " (Sacher v. State of New York, 211 A.D.3d 867, 870, 180 N.Y.S.3d 245 [2d Dept. 2022] [ellipsis omitted], quoting Matter of Geneva Foundry Litig., 173 A.D.3d 1812, 1813, 105 N.Y.S.3d 648 [4th Dept. 2019]). On the other hand, where a claim is "based upon a series of ongoing acts or omissions occurring on multiple dates over the course of a period of time," courts have recognized that pleading a range of dates may fulfill section 11 (b)’s requirements (Sacher, 211 A.D.3d at 872, 180 N.Y.S.3d 245, citing Gang v. State of New York, 177 A.D.3d 1300, 113 N.Y.S.3d 423 [4th Dept. 2019] [involving allegations of negligent failure to treat infection for several weeks following surgery], Rodriguez v. State of New York, 8 A.D.3d 647, 779 N.Y.S.2d 552 [2d Dept. 2004] [involving allegations of negligent failure to treat heart condition over five-month period during the claimant’s term of imprisonment], and Epps v. State of New York, 199 A.D.2d 914, 606 N.Y.S.2d 64 [3d Dept. 1993] [involving allegations of negligent medical care received over a two-and-a-half-year period of the claimant’s term of incarceration]; see Condolff v. State of New York, 18 A.D.3d 797, 798, 795 N.Y.S.2d 454 [2d Dept. 2005] [claim satisfied 11 (b) where it alleged various causes of action arising during course of 15-day hospitalization]; cf. Geneva Foundry Litig., 173 A.D.3d at 1814, 105 N.Y.S.3d 648 [claim did not satisfy 11 (b) where the claimants "failed to supply any dates or ranges of dates regarding their alleged injuries"]).

[5] As an initial matter, given the inconsistent and confusing allegations in the claim, defendant reasonably surmised in support of its motion that the claim alleged that the failure to diagnose and treat claimant’s condition arose "in or about April 2020" (Claim, ¶ 20). Contrary to defendant’s argument, however, such a limited date range easily would have fulfilled section 11 (b)’s requirements under the governing precedent outlined above. But as defendant correctly notes in its submissions, the allegations pertaining to April 2020 appear to be factually incorrect because claimant testified at her deposition that they were "inaccurate" and stated that her symptoms actually arose in the "beginning of 2019" (Masry Affirm in Supp of Mot, Exh A, at 101-102; see Matter of DeMairo v. State of New York, 172 A.D.3d 856, 857, 100 N.Y.S.3d 362 [2d Dept. 2019]; Curro v. State of New York, 79 Misc.3d 888, 889, 188 N.Y.S.3d 869 [Ct. Cl. 2023]). Claimant does not argue otherwise in opposition to the motion and, indeed, specifically disavows that the claim alleged that the claim arose in April 2020 (see Hines Affirm in Opp to Mot, ¶ 8). Rather, claimant contends that paragraph 23 of the claim alleges that the claim arose "from on or about April 30, 2018 to the present" (i.e., the date the claim was filed on February 25, 2022), and that this larger range of dates nevertheless satisfies section 11 (b).

Whether the time-when requirement of section 11 (b) would be satisfied by such a significantly broader range of dates encompassing nearly a four-year period presents a closer question. As cited above, in claims of medical malpractice brought by incarcerated persons alleging ongoing negligent omissions or the failure to diagnose a specific medical condition in a specific correctional facility or facilities, the Second and Third Departments have found section 11 (b) satisfied in cases where the claimant specified a broad range of dates occurring sometime within the claimant’s term of imprisonment (see Epps, 199 A.D.2d at 914, 606 N.Y.S.2d 64 [two-and-a-half years]; Rodriguez, 8 A.D.3d at 648, 779 N.Y.S.2d 552 [five months]). Although the Second, Department has called into question the reliance of Epps and Rodriguez on the premise that a notice of intention to file a claim need not meet the same stringent requirements imposed upon the claim itself (see Sacher, 211 A.D.3d at 873-875, 180 N.Y.S.3d 245), that Court nevertheless left intact their holdings as applied in their particular contexts²—circumstances simi- lar to those at issue here—and expressly cited them in acknowledging that the specification of a range of dates as the time when the claim arose may satisfy the pleading requirements of section: 11 (b) (see Sacher, 211 A.D.3d at 872, 180 N.Y.S.3d 245).³ As has been aptly noted in connection with a section 11 (b) "time when" analysis undertaken with respect to a personal injury claim brought by an incarcerated person and which rejected the State’s challenge on that ground: "[incarcerated persons] are under the complete care, custody[,] and control of the [d]efendant. Their actions are constantly monitored, and [DOCCS] maintains an extensive paper record of incidents, injuries, [and their] medical care," such that defendant generally is able "to conduct a prompt investigation of the claim and to ascertain its liability, if any" in such cases (Cain v. State of New York, 11 Misc.3d 1066[A], 2006 WL 721257 [Ct. Cl. 2006] [internal quotation marks omitted]).

However, unlike in Epps and Rodriguez, where the claimants alleged that their claims arose and then continued during a range of dates constituting a discrete subset of time (even if a lengthy period) during their term of imprisonment, claimant here alleges that her medical malpractice claim first arose on April 30, 2018, the very day she entered DOCCS custody—approximately two years before the date that the claim alleges that her symptoms even started. As noted above, the claim alleges that her symptoms began in April 2020. And even assuming, as claimant later testified at her deposition, that the April 2020 date was not correct and that the onset of her symptoms occurred in the beginning of 2019, defendant correctly notes that it strains credulity that corrections personnel failed to, diagnose or treat claimant on the first day she arrived in state custody—particularly at a time when she was exhibiting no symptoms—such that the claim could have arisen on that specific date. Further, the use of a range of dates encompassing the entirety of claimant’s incarceration up to the date the claim was...