New York State Court of Claims

New York State Court of Claims

ZAPATA v. New York, #2000-012-506, Claim No. None, Motion No. M-60903


Claimant's (pro se inmate) motion for permission to file a late claim sounding in medical malpractice is granted, notwithstanding the absence of a supporting affidavit from a physician, since the submitted medical records tend to support claimant's allegations, and there is no prejudice to the defendant arising from the late filing.

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):

John P. Lane
Claimant's attorney:
Edward Zapata, Jr., pro se
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New York
By: Wendy E. Morcio, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 20, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant's application for permission to file a late claim:

Notice of Motion and Supporting Papers

Affidavit in Opposition and Exhibits

Reply Affidavit and Exhibits

Claimant, an inmate at the Groveland Correctional Facility, seeks permission to file a late claim arising out of alleged negligence and medical malpractice occurring at Lakeview Shock Correctional Facility between June 1, 1999 and July 29, 1999. Claimant did not act to institute his claim until November 16, 1999, when he served on defendant a notice of intention to file a claim and a set of motion papers seeking permission to file a late claim. Those motion papers were defective and the motion was not filed until claimant served (on December 14, 1999) and filed additional papers.

Claimant alleges that he went to the prison infirmary on June 1, 1999 and that a Dr. Velez prescribed a thyroid medication, Synthroid (Livothyroxin); that between June 1
st and July 29th he was constantly signing up for sick call for lightheadedness, dizziness and nausea; that he was seen on those occasions by Dr. Velez or Dr. Gilbert, who assured him that everything was alright; that on July 29th he had an incident in which he felt lightheaded and had to be carried to the infirmary by two other inmates; and that after being examined in the infirmary he was transferred to Brooks Memorial Hospital ("Brooks") where he was admitted and remained until August 3, 1999. Claimant further alleges that he was told by a Dr. Bishop, the endocrinologist at Brooks, that the medication he had been prescribed at the correctional facility was the "wrong medication" (proposed claim, ¶ 3); and that such was the cause of the symptoms he had been experiencing, which also included heart palpitations, weight loss, and numbness in his legs. He also alleges that, after he returned to the correctional facility on August 3, 1999, he was "denied the proper medical treatment for failing to follow up with Dr. Bishop" (id.).
Claimant states that he failed to timely interpose a claim because he is not an attorney and he had no access to an attorney or to the prison law library during the relevant statutory period (i.e., 90 days following accrual). Claimant maintains that the claim accrued on July 29, 1999, and the court notes that the defendant was served with claimant's first set of papers (i.e., the notice of intention and the defective motion papers) less than one month following the expiration of the 90-day period in which he could have filed a claim without permission of the court.

An application for permission to file a late claim is addressed to the discretion of the court, discretion that is to be exercised after consideration of the six specific factors set forth in Court of Claims Act § 10(6)[1]
as well as any other relevant factor. The presence or absence of any particular factor is not controlling (Beckford v State of New York, 264 AD2d 841; Ledet v State of New York, 207 AD2d 965), and the appropriate analytical approach consists of a balancing of all of the relevant considerations.
Although the defendant opposes claimant's motion, it does concede that two of the factors – notice and the opportunity to investigate – have been "satisfied" (Morcio aff., ¶ 7). The State's opposition is based upon its contention that consideration of the remaining four factors weighs against granting the motion. Although the court agrees that claimant has not presented a legally-cognizable excuse[2]
, the court finds that the lack of prejudice, apparent merit and alternate remedy factors all weigh in favor of granting the motion.
As to prejudice, defendant contends that "the doctor's and nurses' memories of this inmate have faded due to the passage of time" (Morcio aff., ¶ 9), but it offers no factual basis whatsoever for this conclusion on the part of counsel. Indeed, it would seem that the passage of less than one month (from October 27, 1999, when claimant could have interposed a claim without judicial permission, to whenever the papers that claimant served by mail on November 16, 1999 were received) would not have as deleterious an effect on doctors' and nurses' memories as counsel postulates. Moreover, the existence of claimant's medical records from both the correctional facility and the hospital seems sufficient to overcome any memory loss that actually occurred during this three-week period. As a practical matter, the court is unable to discern how the defendant's ability to defend this claim is any different than if had been timely interposed, particularly since the statute speaks of "substantial" prejudice. Accordingly, the court finds that this factor weighs in favor of granting the motion.

Although defendant suggests that claimant has an alternate remedy in the form of an action against Brooks Memorial Hospital, claimant does not take issue with the treatment he received at that hospital whatsoever. The thrust of his allegations is that he was not treated properly until he was transferred to the hospital, and the damages for which he seeks recovery relate primarily to the period of time prior to his transfer there. Since defendant has not identified any viable alternate remedy available to claimant with respect to those damages, the court finds that this factor weighs in favor of granting the motion.

The final factor is whether the claim has the appearance of merit. The standard to be applied in evaluating the apparent merit of a claim for which permission to late file is sought was set forth in
Matter of Santana v New York State Thruway Auth. (92 Misc 2d 1, 11): (1) the claim "must not be patently groundless, frivolous or legally defective," and (2) after consideration of the submitted papers, there must be reasonable cause to believe that a valid cause of action exists.
Defendant submits that the proposed claim herein "may lack merit" (Morcio aff., ¶ 8), a statement that implies that claimant must, in essence, establish the merit of his claim to the same degree of certainty as applies at trial, which is of course not the case. While it "may" well be the case that the claim will ultimately be shown to lack merit, claimant's sole burden on this motion is to establish that it is not groundless, frivolous or defective and that there is reasonable cause to believe that he may be able to establish its merits at trial. In addressing the apparent merit of the proposed claim, defendant argues that the treatment received by claimant on and after July 29, 1999 was proper, and completely ignores claimant's allegations with respect to his treatment prior to that date.

Also ignored by the defendant is claimant's failure to submit an affidavit from a physician addressing the merit of his allegations of malpractice. In this regard, Judge Alan Marin of this court recently observed in a similar context:
Claimant supplies no affidavit from a physician; is this fatal to showing the appearance of merit as the defendant suggests *** ? There is definitely some precedent for such position. Schreck v State of New York, 81 AD2d 882, 439 NYS2d 162 (2d Dept 1981, Rabin, J., dissenting); Favicchio v State of New York, 144 Misc 2d 212, 543 NYS2d 871 (Ct Cl 1989); and Jolley v State of New York, 106 Misc 2d 550, 434 NYS2d 122 (Ct Cl 1980). However, appellate division cases subsequent to Schreck are moving in the other direction: Caracci v State of New York, 178 AD2d 876, 577 NYS2d 925 (3d Dept 1991), and DePaolo v State of New York, 99 AD2d 762, 472 NYS2d 10 (2d Dept 1984). (O'Shea v State of New York, Ct Cl, unpublished order filed November 5, 1999, Motion No. M-59853).

Schreck, supra, the Second Department held that it was error for the Court of Claims to have granted the late filing motion since claimants had "failed to submit a medical affidavit to establish a causal relationship between the alleged negligent acts and the birth of claimants' seriously brain damaged and physically handicapped child" (81 AD2d 882). In Favicchio, supra, Judge Gerard Weisberg of this court found that an affidavit from a physician which merely stated that he had reviewed the medical records and concluded that there was a meritorious cause of action was an insufficient predicate for a judicial finding that the proposed claim had apparent merit, where the grounds for the expert's conclusion were not stated and the medical records had not been submitted to the court. In Jolley, supra, an affidavit from an attorney/physician was held to be insufficient where it stated that the expert had not yet read the medical records but that his opinion that the proposed claim was meritorious was based on his experience and what the claimant had told him.
Here, claimant and defendant have both submitted portions of the relevant medical records, and examination of those records tends to confirm, partially, claimant's allegations. He was seen at the Lakeview infirmary on June 1, 1999, had a consult with Dr. Velez, and placed on Synthroid. A thyroid scan was ordered and claimant was to return in one week. The submitted excerpts do not state what the scan showed, or if there was a follow-up examination. Claimant was treated as an in-patient in the infirmary from June 22
nd - 24th and was supposed to have a follow-up examination in one week, but there is no indication it was performed. On July 29th, he collapsed and was taken to Brooks.
The "transfer summary" from Brooks, written by Anthony Bartholomew, M.D. on August 3, 1999, states that claimant had no significant medical history prior to a three-month history of weight loss, excessive hunger, excessive sweating, palpitations and emotional lability, ultimately resulting in lethargy and weakness to the point where he was unable to walk. Dr. Bartholomew referred to the history and physical written by Dr. Bishop, which states that claimant had been diagnosed with hypothyroidism at a Long Island county jail, that claimant told Dr. Bishop that he had been placed on Levothyroxine but such was not indicated in the correctional facility records and that when he was seen in the emergency room, he was found to have evidence of acute thyroid toxicosis. During his hospital stay, a thyroid scan was found to be not consistent with thyrotoxicosis and claimant was diagnosed with Grave's disease. He was discharged to the correctional facility infirmary with instruction to follow up with Dr. Bishop. Claimant alleges, without contradiction by defendant, that such follow-up consultation never occurred.

Certainly, these records are equivocal. They do not establish that claimant was prescribed an improper medication and they do not establish that he was not. Claimant alleges that he was advised by Dr. Bishop that such an improper prescription was the cause of the symptoms he had experienced for two months, and defendant does not refute or even address that allegation. Notwithstanding that there is no question that expert testimony at trial will be required in order to establish claimant's cause of action, the court finds that there is no absolute bright-line rule that requires an affidavit from a physician in all cases in order to find that a potential claimant has met the burden imposed by Court of Claims Act § 10(6), although in many if not most cases such will be the case. Here, review of all of the submitted papers leads the court to the conclusion that, in view of the relatively short delay, defendant's admission of notice and the complete lack of prejudice, claimant has made a sufficient demonstration of apparent merit (
Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, supra.) so that he should be allowed to proceed with his claim, at least through the pleadings and disclosure stages of the litigation (Holly v State of New York, 191 AD2d 678).
Accordingly, the motion is granted. Claimant shall serve (by a method authorized by Court of Claims Act §11) and file his claim within 60 days of the file-stamped date of this decision and order. Claimant has advised the court that he is scheduled to be released from custody on April 17, 2000 and that his home address after that date will be 16 North 4
th Street, Holbrook, New York 11741, and the Chief Clerk shall mail a copy of this decision and order to such address as well as claimant's correctional facility address.

April 20, 2000
Buffalo, New York

Judge of the Court of Claims

[1](1) whether claimant's delay was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had the opportunity to investigate during the original 90-day period; (4) whether the claim appears to be meritorious; (5) whether claimant's failure to serve and file a timely claim would result in substantial prejudice to the State's ability to defend; and (6) whether claimant has another available remedy.
[2]Claimant's medical records indicate that he was released from in-patient treatment well before the expiration of the 90-day period.