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
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
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
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.