New York State Court of Claims

New York State Court of Claims

PILGRIM v. THE STATE OF NEW YORK, #2000-015-064, Claim No. None, Motion No. M-61667


The State is not liable for the medical malpractice of an independent contractor physician.

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):

Francis T. Collins
Claimant's attorney:
Michael W. Pilgrim, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 21, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The movant's application for an order pursuant to Court of Claims Act § 10 (6) permitting him to serve and file a late claim is granted to the extent of permitting the claimant to serve and file a late claim within sixty (60) days of the date of filing of this decision and order setting forth a single cause of action alleging negligence on the part of the State in permitting the movant to use a table saw on November 12, 1999 in the carpenter shop at Oneida Correctional Facility without a safety guard in place and lack of proper supervision. The application for permission to file a late claim asserting a medical malpractice cause of action is denied. The movant's application for an order pursuant to CPLR 1101 and 1102 permitting him to proceed as a poor person is also denied. This application is made by an inmate appearing pro se who alleges in his proposed claim that on November 12, 1999 he was working as a carpenter's assistant in the carpenter shop at Oneida Correctional Facility when he was given an assignment to use a table saw. While using the table saw movant sustained an injury to his left hand. He was taken by ambulance to an outside hospital where he was treated by a physician named Dr. Mutty. Upon his return to Oneida the movant was taken to the infirmary where he remained for a period of eighty-five days. The proposed claim seeks $4,160,000.00 upon allegations of negligence concerning the use of the table saw without a safety guard in place and with improper supervision, as well as medical malpractice on the part of Dr. Mutty.

Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and, whether the claimant has any other available remedy".

This motion is timely in that the allegations of negligence involving the table saw are governed by the three year limitations period set forth in CPLR 214 and the medical malpractice theory is governed by the two and one-half year Statute of Limitations set forth in CPLR § 214-a.

Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965), and the statutory factors are not exhaustive or one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254).

The excuses advanced for the failure to timely commence a claim are movant's ignorance of the applicable law, his confinement to the infirmary, and the failure of an attorney to return his telephone calls. Movant was not deprived of the use of the law library or other legal resources while confined to the infirmary. The proposed excuse amounts to ignorance of the law since movant could have timely pursued his claim if he had the requisite legal knowledge. Ignorance of the law is not an acceptable excuse and that factor weighs against granting the motion (Matter of E.K. v State of New York, 235 AD2d 540).

The intertwined issues of notice, opportunity to investigate and prejudice will be considered together. The only arguments made in opposition to the motion are that the movant has not established a good excuse nor a potentially meritorious claim. The Attorney General does not argue that the State was unable to promptly investigate this incident. In view of the nature of the incident, the injuries sustained, and the outside medical treatment received by the movant, it is clear that employees of the Department of Correctional Services had prompt notice of this incident. Prompt notice coupled with the failure of the Attorney General to argue that the Department of Correctional Services did not investigate the incident, leads the Court to conclude that the defendant will not be prejudiced if a late claim is allowed. The factors of notice, opportunity to investigate, and lack of prejudice weigh in favor of granting the application.

As to the issue of merit, the proposed claim alleges ordinary negligence with respect to the lack of a safety guard upon the table saw and a medical malpractice cause of action against the State for the acts of Dr. Mutty. The allegations concerning Dr. Mutty contained in the proposed claim establish that he was an independent contractor at the time he treated the movant and the State is not liable for the tortious conduct of an independent physician or hospital (Rivers v State of New York, 159 AD2d 788; Williams v State of New York, 164 Misc 2d 783). Furthermore, a late claim motion based upon a cause of action sounding in medical malpractice must be accompanied by the affidavit of a physician or other expert medical provider setting forth facts which establish a deviation from generally accepted medical practice in order that the Court may determine the potential merit of the proposed claim (Schreck v State of New York, 81 AD2d 882; Favicchio v State of New York, 144 Misc 2d 212; Jolley v State of New York, 106 Misc 2d 550). The motion papers before the Court do not contain the requisite expert medical affidavit or affirmation. Consequently, movant has failed to establish a potentially meritorious medical malpractice cause of action and late claim relief must be denied as to that theory of recovery.

As to the allegations concerning the table saw, a late claim will be allowed when the proposed claim is not "patently groundless, frivolous, or legally defective" and "there is reasonable cause to believe a valid cause of action does exist" (Rosenhack v State of New York, 112 Misc 2d 967, 969, 970). In the Court's view, an allegation that employees of the Department of Correctional Services allowed a table saw to be utilized without proper supervision or the safety guard in place presents a potentially meritorious negligence cause of action.

As to the last factor, while movant may have another remedy concerning his allegations of medical malpractice through an action in Supreme Court against Dr. Mutty, it does not appear that he has any other recourse with respect to the alleged negligence cause of action.

Turning to the poor person motion, that relief is premature in that there is no pending claim. Although movant is being granted permission to serve and file a late claim he may decide not to do so and poor person relief would, in that event, be unnecessary. At this juncture, the poor person motion must be denied as academic without prejudice to a later motion for that relief once the claim is served and filed.

August 21, 2000
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated March 26, 2000;
  2. The proposed claim verified March 26, 2000;
  3. Petition to proceed as a poor person dated March 26, 2000;
  4. Affidavit of Michael W. Pilgrim in support of poor person relief sworn to March 26, 2000;
  5. Affirmation in opposition of G. Lawrence Dillon dated June 23, 2000, with exhibits.