New York State Court of Claims

New York State Court of Claims

TUSZYNSKI v. THE STATE OF NEW YORK, #2000-011-582, Claim No. NONE, Motion No. M-62197


Synopsis


Claimant's motion to late file is denied.

Case Information

UID:
2000-011-582
Claimant(s):
DEAN TUSZYNSKI
Claimant short name:
TUSZYNSKI
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-62197
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Dean Tuszynski, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Michael C. Rizzo, Esq., of counsel)
Third-party defendant's attorney:

Signature date:
September 26, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


The proposed claim alleges that Claimant injured his back lifting a fifty pound sack of potatoes while working in the mess hall at Mt. McGregor Correctional Facility. Claimant also alleges that the State failed to provide adequate medical care following the incident.

When considering a motion for permission to late file a claim, the court is required to address six factors enumerated in Court of Claims Act §10(6). The first of those factors is whether there is a reasonable excuse for the delay in filing. According to Claimant, he delayed in presenting the claim because he was trying to resolve the matter with Defendant. He does not indicate, however, what efforts he made in that regard and how those efforts interfered with his ability to timely serve and file the claim. The excuse offered is insufficient.

Other factors to be considered are whether Defendant had notice of the essential facts of the claim and an opportunity to investigate. Claimant maintains that he notified the officer in charge of his work detail of his injury at the time of the accident and that he made repeated visits to the infirmary for treatment. Though these actions by Claimant may have provided notice of the injury and the manner in which it occurred, Claimant has not shown that the Defendant was aware of his claim of inadequate training and treatment. However, the seven month delay has not cause substantial prejudice to Defendant despite the lack of notice of these issues because any training and medical treatment provided to claimant should be documented in records maintained by the State.

Also to be considered is whether the proposed claim has an appearance of merit. A claim is said to have merit when it is not patently groundless, frivolous or legally defective and there is reason to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). The proposed claim is based on assertions that the State failed to provide adequate training in how to lift a fifty pound sack of potatoes and also failed to provide adequate medical care because they cannot remedy the injury. Conclusory allegations of negligence are inadequate to establish the appearance of merit. Claimant is required to show that the nature of the activity in which he was engaged was such that training was called for and that such training could have prevented the injury he alleges. In addition, a claim of inadequate medical care must be supported by something more than an allegation that the medical staff failed to effect a cure.

No adequate alternate remedy is available.

On balance, consideration of the factors in Court of Claims Act §10(6) weigh against granting the motion and accordingly, it is denied.

September 26, 2000
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims


Papers Considered:

  1. Notice of Motion for Permission to File a Late Claim dated July 25, 2000.
  2. Affidavit in Opposition of Michael C. Rizzo, Esq., sworn to the 29th day of August, 2000.
  3. Reply Affidavit of Claimant sworn to the 12th day of September, 2000.