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
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,
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