New York State Court of Claims

New York State Court of Claims

DANIELS v. THE STATE OF NEW YORK, #2000-010-044, Claim No. None, Motion No. M-61596


Claimant's late claim application

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):

Terry Jane Ruderman
Claimant's attorney:
Defendant's attorney:
Attorney General for the State of New YorkBy: Elyse Angelico, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 28, 2000
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-4 were read and considered by the Court on claimant's late claim application and poor person application:

Notice of Motion, Claimant's Supporting Affidavit.................................................1

Attorney's Affirmation in Opposition and Exhibits.................................................2

Defendant's Letter Dated May 19, 2000....................................................................3

Defendant's Supplemental Affirmation and Exhibit................................................4

Claimant, a pro se inmate, seeks leave to file a late claim alleging that in early July of 1999, the pharmacist at Sing Sing Correctional Facility ("Sing Sing"),[1] gave claimant the wrong medication. As a result of taking the wrong medication, claimant allegedly passed out and fell, hitting his head on the chair in his cell.

The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in Subdivision 6 of Section 10 of the Court of Claims Act: (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 to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the claimant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see, Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979).

The Court has considered the aforenoted six factors. Claimant's purported excuses for his failure to timely serve and file a claim are essentially ignorance of the law which is not a valid excuse (see, Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654). Additionally, the State would be substantially prejudiced by a granting of claimant's application more than a year after the alleged incident which is the basis of the claim (see, Malek v State of New York, 92 AD2d 659).

Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see, Nyberg v State of New York, 154 Misc 2d 199; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). Significantly absent from claimant's papers, other than his own self-serving statements, is any proof, in admissible form, establishing that he fell and sustained serious injury and that his fall was attributable to his alleged intake of the wrong medication. Here, defendant does not dispute that claimant was given the wrong medication. Rather, defendant asserts that claimant has not established that he in fact ingested the wrong medication, as he had the same number of pills that had been prescribed (Defendant's Ex. B), and, in any event, did not establish that the fall was proximately caused by taking the wrong medication.

At the Court's direction, defendant submitted an affidavit of the Pharmacist II at Sing Sing, Victor Pollock, an affidavit of Sing Sing's Health Services Director, John Perilli, and claimant's blood and urine test results of August 3, 1999 (Defendant's Supplemental Affirmation, Ex. A). Pollock states in his affidavit that there would have been no effect on claimant during the time he did not take his medication (Defendant's Supplemental Affirmation, Ex. A). Perilli's affidavit states:
3. There is no documentation on the medical record that inmate Daniels sustained a head injury or reported any symptoms relevant to a head injury, to any medical personnel during June or July 1999.
4. While Inmate Daniels was given a different medication other that the routinely prescribed one, the medication dispensed was one appropriate for his disease as no adverse symptoms were seen an a result.
5. Blood was drawn and the attached lab report, August 3, 1999, results revealed no adverse effect on Inmate Daniels and indicated that no further treatment was necessary.

Based upon defendant's submissions, the Court finds that claimant has failed to demonstrate the appearance of merit of the proposed claim (see, Qing Liu v City Univ. of N. Y., 262 AD2d 473; Matter of Gallagher v State of New York, 236 AD2d 400).

Accordingly, upon weighing all the factors, claimant's motion for leave to file a late claim is DENIED and his poor person application is DENIED as moot.

July 28, 2000
White Plains , New York

Judge of the Court of Claims

[1] Claimant's papers state three different dates of accrual, the 7th, 11th and 13th of July.