New York State Court of Claims

New York State Court of Claims

RODRIGUEZ v. THE STATE OF NEW YORK, #2001-009-052, Claim No. 98912, Motion Nos. M-63661, CM-64039


Claimant's application to serve and file a late claim and to amend his claim was 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):
Claimant's attorney:
BY: Daniel M. DeLaus, Jr., Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Heather R. Rubinstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
December 10, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks permission to serve and file a late claim pursuant to Court of Claims Act, § 10(6), in order to add to previously filed Claim No. 98912 an additional cause of action asserting negligence against the State. In this application, claimant also seeks permission to amend Claim No. 98912 to clarify allegations in the claim which seeks damages for medical malpractice.

In addition to its opposition to this motion, defendant has also brought a cross-motion seeking to dismiss the claim, based upon a failure to serve a certificate of merit with the medical malpractice claim, as required by CPLR § 3012-a.

The following papers were considered by the Court in connection with both the motion and cross-motion:
Notice of Motion, Affirmation, with Exhibits (including Proposed Claim). 1,2

Memorandum of Law 3

Affirmation in Opposition, with Exhibits 4

Notice of Cross-Motion, Affirmation, with Exhibits 5

Reply Affirmation 7

Claimant, at that time proceeding pro se, filed a claim (Claim No. 98912) on September 4, 1998, seeking damages for medical malpractice and deliberate indifference, alleging that he received inadequate medical treatment while incarcerated at Auburn Correctional Facility. Claimant alleged in this claim that he was injured on June 23, 1998, while working on a grinding machine in the prison's welding shop. He alleged that a piece of metal became lodged in his left eye while he was working on the grinding machine. Claimant alleges that the medical treatment he received for this injury was inadequate, in that the piece of metal was not identified and located until he was ultimately referred to a medical center in Syracuse for treatment, several days after the accident. He alleges that the treatment he received at Auburn Correctional Facility, prior to being referred to the outside facility, was inadequate, in that medical personnel at the facility did not timely and properly diagnose or treat his injury. Furthermore, claimant alleges that he was not provided with medicine which was prescribed to him on the day of treatment at the outside facility, until several days after said treatment.

After filing his claim, claimant continued to proceed on a pro se basis through a period of discovery, which addressed his claims of medical malpractice and deliberate indifference. A trial was ultimately scheduled and commenced by my esteemed and learned colleague, Hon. Donald J. Corbett, Jr., on June 13, 2001. During claimant's direct testimony, Judge Corbett declared a mistrial in the interest of justice, and recommended that claimant seek immediate representation.

Claimant has since retained counsel, who have brought the instant motion on claimant's behalf seeking leave to serve and file a late claim. Specifically, claimant seeks to add a cause of action for negligence, based upon an alleged failure to provide claimant with adequate eye protection and proper supervision while he was working on the grinding machine at the time he sustained his injury.

In order to determine an application for permission to serve and file a late claim, the Court must consider, among other relevant factors, the six factors set forth in § 10(6) of the Court of Claims Act. The factors set forth therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely file a claim and the failure to serve upon the Attorney General a timely claim or notice of intention; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim (see, Matter of Gavigan v State of New York, 176 AD2d 1117).

With regard to excuse, claimant's counsel makes reference to claimant's initial pro se status, and claimant's lack of familiarity with the law of negligence in New York State. However, neither claimant's incarceration nor his ignorance of the law establishes a reasonable excuse for his delay in pursuing this claim for negligence (Hall v State of New York, 85 AD2d 835; Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654). This factor therefore weighs against claimant.

The factors of notice, opportunity to investigate, and substantial prejudice will be considered together. Defendant contends that it will be substantially prejudiced in the defense of this claim should this application be granted, since the alleged incident occurred three years before this application was made[1]. Defendant argues that throughout the discovery process pertaining to claimant's action for medical malpractice, claimant never made any reference to a potential claim for negligence, and in fact claimant affirmatively denied any State involvement regarding the alleged accident. As a result, the State contends that any investigation into the accident at this point in time would be ineffective, since any witnesses would have a difficult time recollecting what occurred, and documentation pertaining to the incident, if any, would be difficult, if not impossible, to locate.

Despite claimant's assertions throughout the discovery process that he was not making any claim based upon the cause of the accident, the State, based upon the medical reports and claimant's own statements, did have actual notice of the facts surrounding this incident. With actual notice, the State did have an opportunity to investigate a potential claim, even before claimant served and filed his claim which only asserted allegations of medical malpractice.

Furthermore, it appears that one Richard Tomlin was the Shop Supervisor employed by the Department of Correctional Services who was on duty at the time of this incident. As set forth in his affidavit attached to defendant's affirmation in opposition (see Item 4, Exhibit C), Mr. Tomlin is still employed as a Shop Supervisor at Auburn Correctional Facility, and therefore would be available for depositions and/or testimony.

Based upon the above, therefore, it does not appear that defendant would be unduly prejudiced should this application be granted.

In order to establish a meritorious claim, it is the burden of the claimant to show that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid claim exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1). Claimant only has to establish the appearance of merit and need not prove a prima facie case at this stage of the proceedings.

In his proposed claim, claimant has alleged negligence against the State for its failure to issue him adequate eye protection which would have prevented his injury from occurring. The State, in its operation of the metal shop at Auburn Correctional Facility, certainly has a legal obligation to provide adequate eye protection and a violation of this duty, if established, would impose liability against the State. For purposes of this application, therefore, the Court finds that a meritorious claim has been alleged.

It does not appear that claimant has any other available remedy.

The Court may in its discretion place as much or as little weight on any of the six factors to be considered pursuant to the statute. Under the current law "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979) and none of the factors can require denial as a matter of law.

Upon weighing and considering all of the factors set forth in Court of Claims Act, Section 10(6), it is the opinion of this Court that claimant's' application seeking to add a cause of action based upon negligence should be granted.

Additionally, claimant also seeks to amend his existing claim merely to clarify his allegations pertaining to medical malpractice and deliberate indifference. In this case, even though the trial of the claim for medical malpractice had commenced, a mistrial was declared and no new date for retrial has been established. Since leave to amend should be "freely given" pursuant to CPLR 3025, and since additional time for discovery will be required based upon this Court's decision herein to permit late claim relief, the amendment proposed by claimant to his original claim will have no negative impact on defendant.

Finally, in its cross-motion, defendant sought dismissal of the claim for failure to serve a certificate of merit, as required by CPLR § 3012-a. As noted throughout this decision, claimant had proceeded with his original claim on a pro se basis up to the time that his trial commenced. Under § 3012-a(f), a certificate of merit is not required from litigants who are not represented by an attorney.

Furthermore, § 3012-a(a)(2) gives an attorney 90 days to provide a certificate of merit, if the attorney was unable to obtain the certificate because a statute of limitations was about to expire. In this case, the application for late claim relief was served one day prior to the expiration of the statute of limitations for negligence. Even though the certificate of merit is required for the medical malpractice portion of this claim, and not for the cause of action asserting negligence (which was the subject of the late claim application), the expiration of the statute of limitations was a critical issue which first had to be addressed by claimant's newly retained counsel. Claimant's counsel, therefore, should be given the opportunity to provide a certificate of merit for the malpractice cause of action.

Since this Court has herein given permission to claimant to amend the malpractice aspect of his claim, which was timely served and filed, and has also granted claimant's application to proceed with a cause of action seeking damages for negligence arising out the same factual situation, in the interest of judicial economy this Court therefore directs that Claim No. 98912 also be amended to include the new cause of action asserting negligence, rather than have claimant serve and file a new, separate claim for such allegations.

Accordingly, it is

ORDERED, that Motion No. M-63661 seeking to add a new cause of action asserting negligence against the State, and also seeking permission to amend Claim No. 98912, is hereby GRANTED; and it is further

ORDERED, that Cross-Motion CM-64039 is hereby DENIED; and it is further

ORDERED, that claimant is hereby directed to serve his amended claim upon the Attorney General either personally or by certified mail, return receipt requested, and to file the amended claim with the Chief Clerk of the Court of Claims, within 45 days from the filing date of this decision and order, and the defendant shall have 40 days after service of the amended claim to serve and file its amended answer; and it is further

ORDERED, that claimant shall serve upon the defendant a certificate of merit, and file same with the Chief Clerk of the Court of Claims, as required by § 3012-a of the CPLR, within 90 days of the filing date of this decision and order.

December 10, 2001
Syracuse, New York

Judge of the Court of Claims

[1] The incident forming the basis of this application occurred on June 23, 1998. The State was served with these motion papers on June 22, 2001, one day prior to the expiration of the three year statute of limitations for negligence actions. The motion was filed with the Clerk of the Court of Claims on June 22, 2001.