New York State Court of Claims

New York State Court of Claims

DUNWOODY v. THE STATE OF NEW YORK, #2000-005-518, Claim No. 99581, Motion No. M-60043


Motion for permission to file a late claim and for poor person status denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Donald J. Corbett, Jr.
Claimant's attorney:
Samuel DunwoodyPro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Carla T. Rutigliano, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 26, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 4, were read on motion by Claimant for permission to file a late claim and for poor person status:

(1, 2) Notice of Motion, and Petition Annexed

(3) Opposing Affirmation and Exhibits

(4) Filed Papers - Claim, Motion No. M-58867.

Upon the foregoing papers, this motion is denied in its entirety.

In Motion No. M-60043, filed on July 22, 1999, Claimant seeks permission to file a late claim and to proceed as a poor person and for the assignment of counsel. As best can be ascertained from the moving papers, the incident(s) underlying the proposed claim occurred on August 29, 1998, September 1, September 3, and September 9, 1998, and the claim appears to allege medical/dental negligence/malpractice. Claimant asserts that the underlying cause of action would not be time-barred by article 2 of the CPLR. He appends a proposed claim.

The proposed claim was actually filed as Claim No. 99581 on December 31, 1998, and was dismissed by me in Motion No. M-59511 in June of 1999. In response, Claimant has filed the instant motion. Claimant alleges ignorance of the law, as a layman, as an excuse for his failure to have timely and properly filed his claim. Of course, Claimant does not have to satisfy all six statutory factors of Court of Claims Act §10(6) to be successful (Bay Terrace Coop. Section IV v New York State Employee's Retirement Sys., 55 NY2d 979).

It appears that on August 29, 1998, at the Auburn Correctional Facility, Claimant allegedly was in a fight, and his little finger was broken, with attendant swelling, etc.. A nurse came to his cell and provided Motrin. It appears that Claimant visited sick call again on September 1, 1998 and September 3, 1998, albeit with no complaint about his hand (Claimant's medical records, appended as Exhibit A to the opposing papers herein) and then again on September 9, 1998, at which time further medical treatment was rendered. It is impossible to determine exactly what Claimant's proposed cause of action is, but the Defendant has properly distilled the arguments irrespective of whether it sounds in medical negligence or medical malpractice. One cannot determine whether Claimant is alleging a misdiagnosis or improper medical care. Indeed, the Defendant argues that the vagueness of the moving papers causes substantial prejudice, and that it is impossible to ascertain whether timely notice was given or that there was an opportunity to investigate the essential facts underlying the claim. Leaving those factors aside for the moment, I am more concerned with the lack of the appearance of merit of the proposed claim.

If the claim sounds in medical malpractice (I will ignore its reference to dental malpractice), then the motion must be denied because it fails to provide the affidavit of an expert witness, someone who has the qualifications to allege a deviation from accepted medical standards (see, Jolley v State of New York, 106 Misc 2d 550, 551-552, and Nyberg v State of New York, 154 Misc 2d 199),and thus there is no appearance of merit to such a cause of action. If the proposed claim is intended to sound in medical negligence, it fails to allege a discernible cause of action. It appears that Claimant saw a facility nurse and complained about swelling and was given Motrin for the pain. Some ten days later, when he next complained about his hand, further medical treatment was rendered. He has failed to set forth a prima facie case alleging negligence, proximate cause, or any acts of negligence. In sum, the proposed claim does not have the appearance of merit, and as such it would be an act of futility and a waste of judicial resources to grant a late claim application under the circumstances. (Prusack v State of New York, 117 AD2d 729). Accordingly the motion for permission to file a late claim is denied.

Additionally, to the extent that Claimant seeks permission to proceed as a poor person and for the assignment of counsel, the motion is denied. Initially I note that there are no filing fees or costs necessary to prosecute this claim in the Court of Claims, and thus no privileges are available under CPLR article 11. Claim No. 99581 was filed on December 31, 1998 and preceded the effective date of §11-a of the Court of Claims Act, with reference to filing fees and as such it has no bearing thereon. This motion also seeks the appointment of counsel to represent the Claimant, relief that is discretionary (Matter of Smiley, 36 NY2d 433; Stephens v State of New York, 93 Misc 2d 273).

For litigants in private litigation, absent statutory provision therefor, as in the instant claims which seek damages for alleged negligence, etc., resulting in personal injury, and for the loss of personal property there is no power in the courts to direct the provision of counsel or to require the compensation of retained counsel out of public funds (Matter of Smiley, supra).

Furthermore, Claimant has failed to demonstrate that he served a copy of this motion upon the County Attorney as required by CPLR 1101(c), (see, Bowman v State of New York, 229 AD2d 1024). Therefore, the motion is denied on this ground as well.

Finally, Claimant has already sought this relief with respect to this very claim in Motion No. M-58867, which relief was denied.

This motion is denied in all respects on substantive, as well as procedural grounds.

June 26, 2000
Rochester, New York

Judge of the Court of Claims