New York State Court of Claims

New York State Court of Claims

PEREZ v. THE STATE OF NEW YORK, #2000-014-528, , Motion No. M-61595


Application for late claim by State inmate is granted.

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):

S. Michael Nadel
Claimant's attorney:
Jeanette Perez, Pro se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Toni E. Logue, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 13, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)


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 treatment.

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, 981.

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 Services.

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 defendant.

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).

October 13, 2000
New York, New York

Judge of the Court of Claims