The following papers were read on claimant's application for permission to file
a late claim pursuant to Court of Claims Act §10(6) and Petition to proceed
as a poor person: Motion for Permission to File a Late Claim, proposed Claim,
Petition, Affidavit in Support; Affirmation in Opposition.
The claimant, a State inmate appearing pro se, seeks permission to file
a late claim in connection with an incident which occurred on July 2, 1999 at
Bayview Correctional Facility, when she and another inmate were moving a
dumpster. She alleges that the wheels on the dumpster were defective, causing
it to fall on her hand. Her proposed claim alleges negligence on the part of
the defendant, and also alleges that she was not given proper medical
Although the 90-day period to serve and file a claim or to serve a notice of
intention has lapsed, Court of Claims Act §10(3), this application was
filed within the relevant statute of limitation so the Court has jurisdiction to
grant relief under §10(6), and has considered the factors listed therein.
See, Bay Terrace Cooperative Section IV, Inc. v New York State Employees'
Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979,
Upon the circumstances presented by the claimant, the delay in filing the claim
was not excusable. It is essentially her contention that she was not
provided necessary legal assistance by agents of the Department of Correctional
The defendant does not oppose this application on the basis of the statutory
factors of notice, opportunity to investigate, or prejudice caused by the delay.
Those factors are therefore presumed to weigh in the claimant's favor. See,
Calzada v State of New York, 121 AD2d 988; Cole v State of New York,
64 AD2d 1023, 1024.
The proposed claim appears to be meritorious, insofar as the claimant has
specifically alleged the actions of the State upon which the causes of action
are predicated. The requirement of a physician's affidavit (Schreck v State
of New York, 81 AD2d 882), in support of an application for a late claim
alleging medical malpractice, is not absolute. See, DePaolo v State of New
York, 99 AD2d 762. The medical malpractice alleged in the proposed claim is
essentially that the State did not follow the advice of medical personnel as to
the appropriate treatment.
It does not appear that the claimant has any other available remedy. The
Assistant Attorney General asserts, without support, that the claimant may have
a remedy against physicians and medical personnel not employed by the
Having considered the relevant statutory factors, Bay Terrace, supra,
the claimant's application for permission to file a late claim is granted.
In connection with the claimant's petition to proceed as a poor person and for
the assignment of counsel, the Court notes that by Order of the Presiding Judge,
filed March 10, 2000, the filing fee required by Court of Claims Act
§11-a(1) was set at $25, in connection with Claim No. 102000, an apparently
related claim filed by the claimant. Since there are no costs in the Court of
Claims (Court of Claims Act §27), the relief sought by claimant, an order
pursuant to CPLR 1101 to prosecute her claim as a poor person, is unnecessary.
Further, a civil litigant, unlike a criminal defendant, has no right to the
appointment of counsel (Matter of Smiley, 36 NY2d 433); nothing in the
claimant's application provides a basis for the Court to exercise its discretion
pursuant to CPLR 1102(a).
In accordance with the foregoing, it is
ORDERED, that claimant's application for permission to file a late claim
against the State of New York is granted; claimant shall file the proposed claim
in accordance with the provisions of Court of Claims Act §§ 11 and
11-a and Rule 206.5 of the Uniform Rules for the Court of Claims, and serve it,
in accordance with the provisions of Court of Claims Act §11, either
personally or by certified mail return receipt requested, upon the Attorney
General, within 45 days of the date of the filing of this Order. The claim
shall be in the form it appears annexed to the claimant's submission, except
that it shall include a statement of the amount of damages claimed, as required
by Court of Claims Act §11(b).