New York State Court of Claims

New York State Court of Claims

SHETLER v. THE STATE OF NEW YORK, #2000-009-416, Claim No. None, Motion No. M-61073


Synopsis


Claimant's application to serve and file a late claim GRANTED.

Case Information

UID:
2000-009-416
Claimant(s):
WILLIAM J. SHETLER and KATHRYN A. SHETLER The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Claimant short name:
SHETLER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-61073
Cross-motion number(s):

Judge:
Nicholas V. Midey, Jr.
Claimant's attorney:
MICHAELS & SMOLAK, P.C.
BY: Michael G. Bersani, Esq., of Counsel.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Patrick B. Sardino, Esq.,
Assistant Attorney General of Counsel.
Third-party defendant's attorney:

Signature date:
June 20, 2000
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimants seek permission to file a late claim pursuant to Court of Claims Act, § 10(6).

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit of Michael G. Bersani, Esq., with Exhibits 1,2

Affidavit of William J. Shetler 3

Memorandum of Law 4

Affirmation in Opposition of Patrick B. Sardino, Esq., Assistant Attorney General 5

Reply Affidavit, with Exhibit 6

In the proposed claim submitted with this application (see Exhibit A to Items 1,2), claimants allege negligence against the State during the time, commencing on March 15, 1999, claimant[1] was required to attend a 90 day mandatory drug rehabilitation program at Willard Drug Treatment Center (hereinafter referred to as "Center"). Prior to his incarceration at the Center, claimant had undergone surgery to repair ligament damage to his right knee on November 8, 1998. In their claim, claimants allege that claimant was required to participate in rigorous physical activity, including marching, running and jumping, despite medical documentation from his physician stating that those activities would be detrimental to his health. Additionally, claimants allege that Mr. Shetler's physician had recommended physical therapy as part of post-operative treatment, and that claimant did not receive this physical therapy while at the Center.

In order to determine an application for permission to file a late claim, the Court must consider, among other relevant factors, the six factors set forth in § 10(6) of the Court of Claims Act. The factors set forth therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely file a claim and the failure to serve upon the Attorney General a timely claim or notice of intention; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim (see, Matter of Gavigan v State of New York, 176 AD2d 1117).

As their excuse for not timely filing a claim, claimants argue that they needed time to investigate the merits of a possible claim. Claimants argue that they needed this time to investigate the merits to insure that they would not file a frivolous claim. The provisions of § 10(3), however, also permit the service of a notice of intention to file a claim, and this option was certainly available to claimants and would have provided timely notice of a potential claim to the State. The Court, therefore, finds that claimants have not provided a reasonable excuse for not timely serving and filing their claim.

The factors of notice, opportunity to investigate, and substantial prejudice will be considered together.

Shortly after his arrival at the Center, claimant was required to complete an assessment form (see Exhibit B to Items 1,2), on which he provided the medical history related to the surgery on his knee, and the limitations on physical activity resulting therefrom. It appears, therefore, that the State was on notice of claimant's prior medical condition. Claimant was issued physical limitation permits (see Exhibits C and D to Items 1,2), further evidence that officials at the Center were aware of Mr. Shetler's medical condition.

Such notice, however, does not establish that the State was aware that claimant had aggravated this condition during his stay at the Center. There is no indication in the papers before the Court that claimant William J. Shetler had made any complaints regarding his required physical activity, or that he sought any treatment due to aggravating his knee injury during his stay. It does not appear, therefore, that the State had any notice of the essential facts constituting the claim, or an opportunity to investigate the circumstances underlying the claim, prior to this motion.

Nevertheless, based upon existing medical records, the assessment form (Exhibit B) and the physical limitation permits (Exhibits C and D), it does not appear that there would be any substantial prejudice to the State if the claim was to be allowed at this time.

In order to establish a meritorious claim, it is the burden of the claimant to show that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid claim exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1). In their proposed claim, claimants have alleged that the State improperly and negligently required claimant to regularly participate in activities that were injurious to his knee, even though it was aware that claimant had a pre-existing injury precluding him from such activities. For purposes of this application, therefore, the Court finds that a meritorious claim has been alleged.

It does not appear that claimants have any other available remedy.

The Court may in its discretion place as much or as little weight on any of the six factors to be considered pursuant to the statute. Under the current law "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979) and none of the factors can require denial as a matter of law.

Upon weighing and considering all of the factors set forth in Court of Claims Act, Section 10(6), it is the opinion of this Court that claimant William J. Shetler should be allowed to file the proposed claim.

The Court notes, however, that neither the proposed claim nor any of the supporting papers submitted with this motion assert a cause of action on behalf of Kathryn A. Shetler. This Court, therefore, has no basis on which to grant her late claim relief.

Furthermore, it should be noted that this Court has amended the caption of this proposed claim to delete any references to "Willard Correctional Facility" as a named defendant (see Footnote No. 1), an entity over which this Court does not possess jurisdiction and is therefore not a proper party before this Court.

Accordingly, it is

ORDERED, that Motion No. M-61073 is hereby GRANTED, in part, to the extent that claimant William J. Shetler is permitted to serve and file his claim, set forth in Exhibit A to Items 1 and 2, except that any and all references to Kathryn A. Shetler as a claimant and to "Willard Correctional Facility" as a defendant must be deleted. Claimant William J. Shetler is directed to serve his claim upon the Attorney General (either personally or by certified mail, return receipt requested) and to file his claim with the Chief Clerk of the Court of Claims within 30 days of service of a file-stamped copy of this order, with such service and filing to be in accordance with the Court of Claims Act and the Uniform Rules for the Court of Claims.


June 20, 2000
Syracuse, New York

HON. NICHOLAS V. MIDEY, JR.
Judge of the Court of Claims




[1]
Unless, otherwise indicated, all references to claimant are to William J. Shetler.