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Indigent NY Prisoner's Action Commenced When Clerk Received Pleadings

Cleveland Lovett, a New York state prisoner, was badly injured while trying
to elude police in September of 2002. He was treated at Bellevue Hospital
and Riker's Island until February 25, 2003. On April 2, 2004 Lovett mailed
a medical practice complaint, and a summons motion for poor person status,
and motion for leave to serve a late notice of claim to a state court. On
May 17,2004 the court granted the motion for poor person status, and on
June 7, 2004 the court clerk assigned the case a file number. Defendant
health care staff opposed the motion to file a late notice of claim as
untimely.

The court recognized that such a case must ordinarily be started within one
year and ninety days of the claimed malpractice. It also found an action to
be filed, under normal circumstances, when the file number is issued. As
such, Lovett's action would have been untimely based on the June 2004
issuance of the file number in his case. But CPLR § 1101(f) deems
prisoners' cases filed with a motion for poor person status to be commenced
when the clerk receives the pleadings, in this case, in April of 2004. On
that basis, Lovett's case was timely filed, and his motion to serve a late
notice of claim was granted. See: Lovett v. City of New York, 800 N.Y.
2d349 (2005)

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Related legal case

Lovett v. City of New York

[U] Lovett v. City of New York, 6 Misc.3d 1032(A), 800 N.Y.S.2d 349 (N.Y.Sup. 01/28/2005)

[1] Supreme Court, New York County


[2] No. 401781/04


[3] 6 Misc.3d 1032(A), 800 N.Y.S.2d 349, 2005 NY Slip Op 50278(U), 2005


[4] January 28, 2005


[5] CLEVELAND LOVETT, PLAINTIFF,
v.
THE CITY OF NEW YORK, BELLEVUE HOSPITAL, DR. HEYMAN, DR. KALVA, DR. MROCZEK, DR. CHIANG, PRISON HEALTH SERVICE, DR. BASHIR/KADRY, P.T. DEMPSEY, DEFENDANTS.


[6] The opinion of the court was delivered by: Alice Schlesinger, J.


[7] Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


[8] This opinion is uncorrected and will not be published in the printed Official Reports.


[9] Plaintiff Cleveland Lovett, an incarcerated person, has moved in this medical malpractice action for leave to serve a late Notice of Claim, pursuant to General Municipal Law §50-e, subd. 5. Defendants City of New York and The New York City Health and Hospitals Corporation (collectively referred to as NYCHHC) have opposed the motion, contending that it is untimely and even if it is not, it would be an abuse of discretion to grant the motion. For the reasons set forth herein, plaintiff's motion is granted.


[10] Background


[11] The underlying facts are as follows. Plaintiff was badly injured on September 20, 2002 during a police pursuit when he jumped, fell or was pushed 60-80 feet off the Henry Hudson Parkway at 72nd Street in Manhattan. Following his arrest, plaintiff was taken by ambulance to St. Luke's Hospital where he was immediately admitted. Doctors performed emergency surgery on that day and also on October 2 and 9, 2002. Following the surgeries, on October 21, 2002, plaintiff was transferred to Bellevue Hospital where he remained until January 15, 2003. He was then sent to the Riker's Island Infirmary. On February 25, 2003 plaintiff was returned to Bellevue Hospital for additional treatment due to decreased range of motion allegedly related to the injury. In May 2004 plaintiff filed a summons and complaint and a poor person's application to commence this action at a reduced fee. Plaintiff claims in this action that the doctors at Bellevue Hospital departed from accepted standards of medical care in that they prematurely discontinued antibiotics and failed to properly examine plaintiff and treat his severe infections. Plaintiff further alleges that, following his discharge to the Riker's Island Infirmary, the doctors neglected to send plaintiff for proper therapy and full rehabilitation services, all of which caused plaintiff to sustain permanent injuries.


[12] Plaintiff did not file a Notice of Claim within ninety days of the alleged malpractice as required by General Municipal Law §50-e. Therefore, when he filed the papers to commence this action, he also submitted an order to show cause for leave to file a late Notice of Claim. It is that motion which is now before the Court for decision.


[13] Rules Governing a Notice of Claim


[14] Pursuant to General Municipal Law §50 e, subd. 1(a), a claimant commencing a tort action against a public corporation must serve and file a proper Notice of Claim within ninety days after the claim arises. The related action or proceeding must be commenced within one year and ninety days of the event. General Municipal Law §50 I. An application for an extension of time to serve a Notice of Claim may be made before or after the action has been commenced, but not after the one-year and ninety-day statute of limitations has run, unless the statute has been tolled. General Municipal Law §50-e, subd. 5.; see also, Hall v. City of New York, 1 AD3d 254 (2003); Pierson v. City of New York, 56 NY2d 950, 954 (1982); Nunez v. The City of New York, 307 AD2d 218, 219 (1st Dep't 2003).


[15] In the case at bar, NYCHHC claims that plaintiff's motion must be denied because it was made after the statute of limitations for commencement of the action expired. The Court begins by examining this threshold issue, which is novel due to the unique facts of this case.


[16] The Motion Papers were Timely Filed under the Inmate Rule


[17] The parties agree that plaintiff was discharged from Bellevue Hospital on January 15, 2003 and received subsequent related treatment at the Riker's Island Infirmary through February 25, 2003. Based on the one-year and ninety-day statute of limitations, NYCHHC acknowledges that May 25, 2004 is the earliest date that plaintiff's claim could expire. (Def Aff in Opp at ¶7).*fn1 Since the index number for this action was issued on June 7, 2004, NYCHHC contends that plaintiff's claim is barred by the statute of limitations. Although the argument may be appealing at first glance, it ultimately does not convince after a careful scrutiny of the record and the particular laws applicable to this case.


[18] An action is commenced when a summons and complaint or summons with notice is filed, and a special proceeding is commenced by filing a petition, which may be brought on by notice of petition or order to show cause. CPLR §304. An index number is assigned by the clerk of the court when these pleadings are filed along with the required fee. CPLR §306-a. As a general rule, CPLR §304 commencement by filing is not satisfied when an unexecuted order to show cause is submitted to the court with a petition; to commence the proceeding, the petitioner must file a copy of the order to show cause signed by the judge after the index number has been assigned and the fee paid. Fry v Tarrytown, 89 NY2d 714 (1997).


[19] However, under CPLR §1101(f), an exception has been carved out for inmates filing for poor person status. Under the exception, the clerk of the court is obligated to assign an index number to the case upon receipt of the pleadings and the poor person application, even before the papers are submitted to a judge for approval. Specifically, section 1101(f), entitled "Fees for inmates," states in relevant part that:


[20] Notwithstanding any other provision of the law to the contrary, a federal, state or local inmate under sentence for conviction of a crime may seek to commence his or her action or proceeding by paying a reduced filing fee as provided in paragraph two of this subdivision. Such inmate shall file the form affidavit referred to in subdivision (d) of this section along with a summons and complaint or summons with notice or third-party summons and complaint or petition or notice of petition or order to show cause ..The case will be given an index number ... and the application will be submitted to a judge of the court.


[21] The Court of Appeals recently discussed the application of this statute in Grant v. Senkowski, 95 NY2d 605 (2001). In Grant, the petitioner filed an order to show cause in lieu of a notice of petition, along with an Article 78 petition and a request to proceed as a poor person. Respondent moved to dismiss the proceeding as time barred, arguing that the papers, while timely mailed, had been received by the court two days after the statute of limitations had expired. The Supreme Court granted respondent's motion and dismissed the proceeding, and the Appellate Division affirmed. 270 AD2d 536 (3rd Dep't 2000). On appeal, our highest court examined whether petitioner had complied with the CPLR §304 commencement by filing requirements.


[22] Petitioner had urged the court to follow the federal procedure which recognizes "the mail box rule". This rule deems litigation papers mailed by a pro se prisoner to the clerk of the court as "filed" the moment the papers are deposited in the mail. Houston v. Lack, 487 U.S. 266 (1988). The Court of Appeals in Grant rejected the "mail box rule," finding that the State Legislature in drafting CPLR §304 had evinced the intent to treat litigation papers as "filed" only upon the clerk's physical receipt of the papers. 95 NY2d at 609. Nevertheless, the court held that the Article 78 proceeding had been timely commenced when the prisoner's unexecuted order to show cause arrived at the clerk's office. It reasoned that, because CPLR 1101(f) provided for the assignment of the index number upon the clerk's receipt of the papers, the statute implicitly deemed the papers "filed" at that time, even absent the signature of a judge. Specifically, the Court of Appeals explained its reasoning as follows:


[23] CPLR §1101(f), entitled "Fees for inmates," was enacted in 1999 to provide a means for an inmate to commence an "action or proceeding" by paying a reduced filing fee ... The inmate requests such relief by filing a "form affidavit along with the summons and complaint or summons with notice or third-party summons and complaint or petition or notice of petition or order to show cause " At that point in time, even before the proposed order to show cause is signed by a Judge, CPLR 1101(f)(1) directs that the case "be given an index number and the application will be submitted to a judge of the court." We conclude that this statutory scheme evinces the Legislature's intent to treat an inmate's unsigned order to show cause as "filed" when the case is assigned an index number upon receipt of the papers by the clerk of the court ..."


[24] 95 NY2d at 609-610 (citations omitted, emphasis in the original).


[25] Applying this rule to the case at bar, the record confirms that plaintiff's papers were timely filed. The receipt from the Department of Corrections shows that on April 28, 2004 plaintiff mailed his initial legal papers from Greenhaven Correctional Facility where he was imprisoned to the Supreme Court (county clerk) via first class mail. Those papers included a summons and complaint, motion for poor person status, and the instant order to show cause requesting leave to serve a late Notice of Claim. All the papers were dated or notarized on April 2, 2004. The plaintiff confirmed in his reply affidavit (at ¶6) that he mailed all these papers simultaneously in April. The verified complaint (at ¶4) also confirms that the order to show cause to permit a late Notice of Claim was filed with the complaint.


[26] The entire package was necessarily received by the court on or before May 17, 2004 because Judge Lucindo Suarez signed an order on that date, finding that plaintiff qualified as a poor person and setting a reduced filing fee of $15.00. In accordance with this order, plaintiff authorized a disbursement of $15.00 from his funds at Greenhaven on May 25, 2004, and the funds were promptly sent to the court. However, it was only after the money had been received by the court that the clerk assigned an index number on June 7, 2004 and forwarded the instant order to show cause to this Court.


[27] Based on Grant and CPLR §1101(f), this Court finds that the instant motion must be deemed "filed" when the papers were received by the clerk of the court, whether or not they had been processed and even though the clerk did not assign an index number at that time as required by the statute. Because our highest court expressly held in Grant that an unexecuted order to show cause is sufficient to commence an action or proceeding on behalf of an inmate, an unexecuted order to show cause must be deemed sufficient to bring on a motion under these circumstances. Since the instant order to show cause was received by the court on or before May 17, 2004 when the pleadings and poor person application were filed, and the statute of limitations did not run out until May 25, 2004, the Court further finds that plaintiff timely made this motion within the one-year and ninety-day limitations period, even though he did not receive an index number until June 7, 2004.


[28] The Making of the Motion Tolled the Statute of Limitations


[29] The Court now turns to the question whether plaintiff's timely making of this motion tolled the statute of limitations for Notice of Claim purposes. The question must be answered in the affirmative, based on the application of various principles of law.


[30] First, it is well-established that the statute of limitations for an action based on municipal tort liability is tolled when the plaintiff applies for permission to file a late Notice of Claim until the order granting that relief goes into effect. Giblin v. Nassau County Medical Center et al., 61 NY2d 67, 72 (1984). Further, the filing of a motion for leave to amend a complaint to add a defendant can, for purposes of the statute of limitations, be considered the timely commencement of the action as against the party sought to be added. Perez v. Paramount Communications, Inc. et al., 92 NY2d 749, 753 (1999). The Perez court reasoned (at p 754) that where a motion is filed with the court within the statute of limitations period and the court does not decide the motion until after the period has expired, the adoption of a toll pending the determination of the motion is appropriate and consistent with public policy and the purpose behind a statute of limitations:


[31] Statutes of Limitation are designed to promote justice by preventing prejudice through the revival of stale claims That goal would not be served by a rule which would render the timeliness of a claim dependent upon the speed with which a court decides a motion.


[32] In the instant case, as discussed above, plaintiff commenced this action and made this motion when his initial legal papers were filed with the clerk of the court on or before May 17. Those papers included the summons and complaint, a poor person application, and the instant order to show cause for leave to file a late a Notice of Claim. By analogy to Giblin and Perez, the statute of limitations for filing the Notice of Claim was tolled by the timely making of the motion, pending its determination.


[33] Plaintiff is Entitled to Leave to Serve a Late Notice of Claim


[34] Since the motion was timely made, the next issue to consider is whether this Court in its discretion should grant plaintiff leave to file a late Notice of Claim pursuant to General Municipal Law §50-e, subd. 5. In determining the issue, the Court must consider the various factors set forth in the statute, including: (1) whether the public corporation or its attorney or insurance carrier acquired actual knowledge of the essential facts constituting plaintiff's claim within ninety days of the incident or within a reasonable time thereafter; (2) whether a reasonable excuse exists for plaintiff's delay in serving the notice; and (3) whether the late filing has substantially prejudiced the municipality in maintaining its defense on the merits.


[35] 1. NYCHHC had Actual Notice of Plaintiff's Claim


[36] NYCHHC states that, even assuming arguendo it had access to plaintiff's medical records, those records standing alone were insufficient to have put them on notice of the essential facts constituting plaintiff's medical malpractice claim. In support of this claim, NYCHHC cites various cases in which the court declined to impute knowledge of the claim to a defendant based solely on the existence of hospital records concerning the claimant's treatment. See, e.g., Perkins v. NYCHHC., 167 AD2d 150 (1st Dep't 1990); Leonetti v. Das, 256 AD2d 128 (1st Dep't 1998); Mandia v. County of Westchester, 162 AD2d 217 (1st Dep't 1990).


[37] However, in some cases, medical records have been held sufficient to provide notice. The court looks at the specific facts in each case to make a determination. When the circumstances in and of themselves raise an issue of negligence, the court will generally find that the defendant medical provider has actual knowledge of the facts constituting the claim.


[38] Thus, for example, where a prisoner slipped and fell while incarcerated and was transferred to Bellevue Hospital for twenty-six days, after which he filed a late Notice of Claim, the court found that the records gave defendant sufficient notice of the facts constituting the claim because the circumstances surrounding the injury themselves put the defendant on notice of possible negligence. Wade v. City of New York, 65 AD2d 534 (1st Dep't 1978). The court stated: "It is clear that the city had actual notice of the injury since petitioner was injured in the presence of city employees while confined in a city institution. ... The medical reports were available to the city and would have given the city notice of the injury, and the nature thereof, similar to the information sought by the Notice of Claim". 65 AD2d at 534. Similarly, in several cases where children were born with cerebral palsy, the court found that the medical records constituted sufficient notice to the hospital of the plaintiff's claim because the injury itself suggested the possibility of negligence. Spaulding v. New York City Health and Hospitals Corp., 210 AD2d 128 (1st Dep't 1994); Kurz v. New York City Health and Hospitals Corp., 174 AD2d 671 (2nd Dep't 1991).


[39] NYCHHC here contends that the medical records do not give the hospital actual notice of the facts constituting plaintiff's claim of malpractice. This Court disagrees. The records show that plaintiff was transferred from St. Luke's Hospital to Bellevue Hospital on October 21, 2002. Upon plaintiff's admission to Bellevue Hospital, an emergency room triage note and initial patient assessment dated October 21 indicate that plaintiff had been receiving the antibiotic Cefidime at St. Luke's Hospital. (Exhibit G). Plaintiff asserts, and NYCHHC acknowledges, that the antibiotics were discontinued on October 24, 2002 pursuant to a doctor's order. Plaintiff thereafter acquired a severe infection during his hospital stay at Bellevue Hospital, which itself raises the issue whether the antibiotics had been discontinued prematurely.


[40] Further, the progress notes indicate that from December 5, 2002 through December 20, 2002, the patient had a skin irritation under the cast that was impossible to examine. Also, starting on December 17, 2002 there are notations that there is a blood/pus discharge at the distal end of the cast. These signs and symptoms are indicative of an infection. The medical records also indicate that plaintiff complained of pain throughout his stay at the hospital. Then, after having been discharged in January, plaintiff was returned back to Bellevue Hospital in February for further surgery. In addition, plaintiff wrote a letter of complaint about his hospitalization to Ms. McKenzie, the patient advocate, in January 2003, giving NYCHHC further notice that plaintiff believed his medical care was unacceptable. Thus, in the instant case, the medical records contain sufficient information about the facts constituting plaintiff's claim to constitute actual knowledge during the statutory period.


[41] 2. Plaintiff has a Reasonable Excuse for his Filing Delay


[42] Plaintiff urges the Court to excuse his delay in filing the Notice of Claim because he was physically incapacitated and because he was unaware of the specific statutory requirements for filing. NYCHHC disputes this claim as disingenuous, pointing to plaintiff's motion for leave to serve a late Notice of Claim in a separate matter entitled Lovett v The City of New York, et al., filed under Index No. 110112/03. That action is a police brutality action filed in connection with the arrest discussed above which immediately preceded plaintiff's hospitalization.


[43] However, it is undisputed that plaintiff suffered multiple injuries, requiring extensive surgery and hospitalization from September 20, 2002 and continuing through January 15, 2003, well beyond the ninety-day period for filing a Notice of Claim. In addition, plaintiff was unable to retain counsel for this case, and his incarceration created certain impediments to his proceeding on his own. That plaintiff succeeded in retaining counsel who filed a Notice of Claim in the police brutality action does not necessarily lead one to conclude that plaintiff himself was able to timely file such a Notice here.


[44] In any event, the absence of a valid excuse for the delay is not dispositive to the determination whether a late Notice of Claim can be filed. Rather, all relevant facts and circumstances are to be considered, and delay is only one factor to assess in determining the reasonableness of an application to serve a late notice Justaniano v. New York City Housing Authority Police, 191 AD2d 252 (1st Dep't 1993); see also, Gerzel v. City of New York, 117 AD2d 549 (1st Dep't 1986). In view of the foregoing, this Court finds that plaintiff's delay in filing does not constitute a bar to the requested relief.


[45] 3. Prejudice


[46] NYCHHC makes a conclusory claim that it will be prejudiced by the late filing because a prompt investigation was not done due to lack of notice. Prejudice would stem from the inability to investigate the facts and prepare a defense due to the passage of time. Gomez v. City of New York, et al., 250 AD2d 443 (1st Dep't 1998). No such showing has been made here.


[47] As discussed above, NYCHHC has always been in possession of plaintiff's medical records which contain many of the facts underlying the medical malpractice claim. The facts set forth in these records can be investigated as if the Notice of Claim had been filed within the ninety-day limit. Not much time has passed since plaintiff's care and treatment, which continued from the fall of 2002 into 2003. As this action was commenced in the spring of 2004, NYCHHC was put on notice of the need to reconstruct the events surrounding plaintiff's medical care. Personnel including the treating doctors may still be employed, or the hospital should be able to supply their last known address if the employment relationship has ended. In addition, the police brutality action mentioned above presumably caused the City to retain records and contact witnesses to assess any damages claimed in that case. See Goodall v. The City of New York, et al., 179 AD2d 481 (1st Dep't 1992)(investigation by Civilian Complaint Review Board and by the prosecutors in the criminal action served to preserve evidence relevant to plaintiff's false imprisonment case, thereby eliminating any prejudice which might have been caused by the delay in filing).


[48] Although the purpose of a Notice of Claim is "to allow the municipal defendant to make a prompt investigation of the facts and preserve the relevant evidence", the statute should nevertheless "be applied flexibly" so as to avoid the dismissal of meritorious claims based on ministerial errors. Lomax v NYCHHC, 262 AD2d 2, 4 (1st Dep't 1999). As the Appellate Division has emphasized: General Municipal Law §50-e was not meant as a sword to cut down honest claims, but merely as a shield to protect municipalities against spurious ones." Lomax, 262 AD2d at 4, quoting Deleonibus v Scognamillo, 183 AD2d 697, 698.


[49] Exercising its discretion, this Court concludes under the circumstances here that NYCHHC had actual knowledge of the facts constituting plaintiff's claim, that plaintiff had a reasonable excuse for the delay in serving the Notice of Claim, and that the delay will not cause substantial prejudice NYCHHC. Therefore, plaintiff has established the basic criteria for leave to serve a late Notice of Claim Plaintiff has Sufficiently Established that the Claim has Merit


[50] NYCHHC further opposes the motion on the ground that plaintiff has failed to sufficiently establish that his claim has merit. The argument is unpersuasive.


[51] Pursuant to CPLR §3012-a, counsel commencing a medical malpractice action must file a certificate of merit with his complaint confirming that a medical professional has reviewed the claim and concluded that there is a reasonable basis for commencement of the suit. However, subdivision (f) of the statute expressly provides that: "The provisions of this section shall not be applicable to a plaintiff who is not represented by an attorney." Since the plaintiff in this case is representing himself and has no counsel, the exception directly applies and no certificate of merit is required.


[52] Moreover, courts will ordinarily not deny leave to file a late Notice of Claim based on the merits of the underlying action unless the claim is "patently meritless." Matter of Catherine G. v. County of Essex et al., 3 NY3d 175 (2004). Based on the claims reviewed above, this Court cannot say that plaintiff's case is "patently without merit." Therefore, the late Notice of Claim should be permitted.


[53] Conclusion


[54] Accordingly, it is hereby


[55] ORDERED AND ADJUDGED that plaintiff's motion for leave to serve a late Notice of Claim is granted, and the Notice of Claim is deemed timely served in the proposed form annexed to the moving papers; and it is further


[56] ORDERED that NYCHHC shall serve and file an answer to plaintiff's complaint within thirty (30) days hereof; and it is further


[57] ORDERED that discovery shall thereafter proceed, with NYCHHC having the right to depose plaintiff at Greenhaven or proceed by interrogatories, and plaintiff, so long as he remains imprisoned, having the right to send defendants interrogatories in lieu of depositions; and it is further


[58] ORDERED that the parties shall each submit to this Court by mail a written report as to the status of discovery so as to reach the Court by March 30, 2005.


[59] This constitutes the decision and order of this Court.



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Opinion Footnotes

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[60] *fn1 It may be that the treatment plaintiff received when he was returned to Bellevue Hospital on February 25 was part of a continuous course of treatment, thereby extending the statute of limitations beyond May 25. However, that issue was not presented in sufficient detail for the Court to determine it at this time, and it need not be determined for this motion.