New York State Court of Claims

New York State Court of Claims

WEST v. THE STATE OF NEW YORK, #2000-016-058, Claim No. None, Motion No. M-61588


Late claim motion of pro se inmate asserting that he was trapped in closing cell was denied.

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):

Alan C. Marin
Claimant's attorney:
Leonis West
Defendant's attorney:
Eliot Spitzer, Attorney GeneralEarl F. Gialanella, AAG
Third-party defendant's attorney:

Signature date:
August 14, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the motion of pro se claimant Leonis West for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). In his proposed underlying claim, West alleges that defendant was negligent in allowing a metal cell gate at Sullivan Correctional Facility to close on him, crushing his neck vertebrae and ultimately requiring surgery on his neck. West also asserts that Sullivan medical staff subsequently failed to properly diagnose his injury. In determining whether to grant this motion, the six factors enumerated in the Act must be considered. The factors are not necessarily exhaustive, nor is the presence or absence of any particular one controlling[1]: whether (1) the defendant had notice of the essential facts constituting the claim; (2) the defendant had an opportunity to investigate the circumstances underlying the claim; (3) the defendant was substantially prejudiced; (4) the claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious.

The first, second and third factors -- whether the state had notice of the essential facts, whether the state had an opportunity to investigate and whether the state would be prejudiced by the granting of this motion are intertwined and may be considered together. See William Kleen, The New York State Court of Claims: A Procedural Guide, 19 Trial Law Q 49, 59 (Spring 1988); Avila v State of New York, 131 Misc 2d 449, 500 NYS2d 626 (Ct Cl 1986). Claimant asserts that the state had notice because "block officer C.O. [Daddezio] made [an] entry in the block log book, outlining the particulars of the incident . . . He also made a note of my request to see the doctor on that day to check my injury." See ¶4 of the West's notice of motion. Daddezio states that he does recall an incident where he was told by other inmates that claimant was trapped by his cell door, but he further states that West was immediately freed and he does not recall West asserting that he was injured or asking to go to the infirmary. Daddezio further states that in fact, contrary to claimant's assertion, no entry concerning the incident was made in the log book. A copy of the log is attached to his affirmation and does not appear to contain any reference to claimant's incident. See ¶7 of the June 5, 2000 affidavit of Joseph Daddezio (the "Daddezio Aff.") and accompanying log entry. On balance, claimant barely satisfies the notice-opportunity-prejudice factors of the Act.

With regard to alternative remedy, it would appear that the Court of Claims is the sole venue for West's claim. Defendant states that claimant may have alternative remedies against outside medical personnel (claimant makes one reference to an outside doctor examining him before his surgery). This, however, does not change the fact that claimant's sole venue for claims relating to treatment by Sullivan Correctional Facility personnel lies in this Court.

To the extent that West's claim arises from negligence in the closing of the cell door, he has provided no explanation for his failure to timely serve and file a claim. With regard to medical care, claimant asserts that despite his requests for medical attention, the doctors repeatedly misdiagnosed his injuries, and he was unable to obtain his medical records to determine the extent of his injuries, despite multiple requests. However, he seems to suggest that the injury was ultimately diagnosed and treated by surgery in late August 1999; he provides no explanation as to why he waited almost eight months thereafter to file this late claim motion. Accordingly, West fails to satisfy the excuse factor of the Act.

The remaining factor to be considered is merit. To the extent that the claim arises from the operation of the cell gate, it appears undisputed that claimant was caught in the gate in some fashion. The issue, however, is whether claimant was injured or, more specifically, "stuck in between the heavy metal gate and the steel entrance frame, while [claimant's] neck vertebrae was being crushed by said gate," resulting in the need for surgery on his neck in late August 1999. See proposed claim, ¶2 and ¶2 of claimant's notice of motion. Defendant asserts that the cell gate moved so slowly that "it is unimaginable how the claimant would have gotten his neck trapped between the wall and closing cell door." See ¶9 of the June 8, 2000 affirmation of Earl F. Gialanella (the "Gialanella Aff."). Daddezio recalls that West was caught between the cell door and wall around his midsection. Moreover, affidavits of two other inmates submitted with claimant's papers indicate that West's arm was stuck in the cell gate. See ¶¶2 of the affidavit of James Fredenbugh and Michael Jones. In addition, defendant has submitted claimant's ambulatory health records for the days before and after the incident; nowhere is there any reference to his neck being injured or getting caught in a cell gate. The records also show that prior to December 14, 1998 (the date of the incident), claimant was being treated for pain of the back and shoulder and was scheduled for an appointment on December 14. There are two entries on December 14. The first states, in part, that claimant "woke up . . . stiffened. Heavy [weight] lifter." See Exhibit B to the Gialanella Aff.

As to West's claim arising from the medical care he received, he has provided little detail to support his claim that Sullivan medical personnel failed to properly diagnose his injury and he has provided no affidavit from a physician. There is some precedent that without such an affidavit, a demonstration of the appearance of merit is not possible. See Schreck v State of New York, 81 AD2d 882, 439 NYS2d 162 (2d Dept 1981); 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 have suggested that such an affidavit may not be necessary. See DePaolo v State of New York, 99 AD2d 762, 472 NYS2d 10 (2d Dept 1984), and Caracci v State of New York, 178 AD2d 876, 577 NYS2d 925 (3d Dept 1991). But while the lack of a doctor's affidavit may not be fatal, West has not even supplied medical records.[2] As set forth above, defendant has supplied medical records for the period shortly before claimant's accident until January 5, 1999. These records on their face do not appear to indicate any flaws in treatment. Moreover, no medical records have been submitted for the period up to late August 1999 – the period when the injury was supposedly misdiagnosed and then finally diagnosed and treated with surgery.

Matter of Santana v NYS Thruway Authority
, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977) sets out a standard to ascertain whether a claim appears meritorious: (i) the claim "must not be patently groundless, frivolous or legally defective" and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, "there is reasonable cause to believe that a valid cause of action exists." I cannot find that claimant has satisfied this standard.

In view of the foregoing, having reviewed the parties' submissions,[3] IT IS ORDERED that motion M-61588 is denied.

August 14, 2000
New York, New York

Judge of the Court of Claims

[1] See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  1. [2]Although West states that he made several requests for his records and never received them, he provides no detail. Nor does he explain what happened after his last such request in September of 1999, approximately seven months prior to making this motion.
  2. [3]The following were reviewed: claimant's notice of motion seeking permission to file late notice of intention to file claim, with affidavits in support of James Fredenbugh and Michael Jones and a proposed claim; and defendant's affirmation in opposition with Exhibit A and B, with Exhibit A being the affidavit of Joseph Daddezio with attached log entry.