Notice of Motion, Affirmation, with Exhibits (including Proposed
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
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
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
. 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