New York State Court of Claims

New York State Court of Claims

JACKSON v. THE STATE OF NEW YORK, #2001-015-199, Claim No. None, Motion No. M-63886


Synopsis


Claimant's motion for late claim relief for a claim alleging personal injury occasioned by fall from upper bunk denied, if motion has not been withdrawn.

Case Information

UID:
2001-015-199
Claimant(s):
LARRY JACKSON
Claimant short name:
JACKSON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-63886
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Larry Jackson, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 30, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant's motion for late claim relief pursuant to Court of Claims Act § 10 (6) is denied. The instant motion was filed on August 7, 2001 and as best the Court can decipher seeks leave to file a claim for personal injures arising from the alleged medical malpractice of DOCS personnel in failing to properly and timely diagnose injuries allegedly resulting from a fall from an upper bunk at Marcy Correctional Facility, Marcy, New York on July 18, 2000. Movant alleges that the injuries he sustained were not properly diagnosed from the date of injury until February 21, 2001. It cannot be determined from the motion or from the attached proposed claim whether the movant is seeking to recover damages for anything other than medical malpractice although movant uses the words "intentional conduct, negligence/medical malpractice" in paragraph 2 of the proposed claim.

The defendant's attorney opposed the motion alleging that late claim relief is unnecessary in light of the fact that on May 21, 2001 claimant filed and served a claim arising out of the same facts (Claim No. 104318) alleging an accrual date of February 21, 2001. The State has filed and served an answer to that claim and counsel avers that discovery is underway in that action.

By letter addressed to the Chief Clerk of the Court dated August 11, 2001 claimant, admitting to some confusion as to the type of motion he intended to file (i.e., a motion seeking leave to file a late notice of intention to file a claim), appears to suggest he is withdrawing the motion for late claim relief. Since it is not clear whether claimant has withdrawn the motion the Court will address its merits.

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".

The motion filed on August 7, 2001 is timely in that a claim containing a cause of action for medical malpractice is governed by the two and one-half year Statute of Limitations set forth in CPLR § 214-a and a cause of action for negligence resulting in personal injury is governed by the three year Statute of Limitation contained in CPLR § 214 (5). Any cause of action for an intentional tort, however, would be untimely as measured from the July 18, 2000 accrual date set forth in the proposed claim (CPLR § 215 (3)) and late claim relief is, therefore, unavailable as to any such cause of action under Court of Claims Act § 10 (6).

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 offered for the failure to timely commence a claim are that claimant did not know the extent of his injuries until he was examined by an outside specialist on February 21, 2001 and that his use of mood altering medication caused him mental confusion. It is clear that the claimant could have timely served a notice of intention to file a claim as Court of Claims Act § 11(b) does not require that a notice of intention set forth the items of damage or injuries claimed (Atterbury v State of New York, 26 Misc 2d 422). It does not appear from the record that claimant served a notice of intention to file a claim within 90 days of the alleged accrual date of July 18, 2000 and his failure to do so renders his proposed excuse unacceptable. Claimant's second excuse concerning the effects of numerous but unspecified medications for depression and anxiety does not convince the Court of claimant's inability to timely commence the action (see, Crane v State of New York, 29 AD2d 1001). These excuses amount 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 (E.K., Matter of, v State of New York, 235 AD2d 540).

The intertwined issues of notice, opportunity to investigate and prejudice will be considered together. The only argument made in opposition to the motion is that late claim relief is unnecessary because claimant actually filed a claim on May 21, 2001 i.e., within 90 days of the claim's stated accrual date of February 21, 2001. The Attorney General does not argue that the State was unable to promptly investigate the incident. In view of the nature of the incident, the injuries complained of, the alleged repeated sick calls which claimant attended at the facility and the outside medical treatment he received, it appears that DOCS personnel had prompt notice of the incident. Prompt notice coupled with the failure of the Attorney General to argue that DOCS 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 appears to present a single cause of action sounding in medical malpractice arising out of the State's failure to timely diagnose and treat claimant's injury (see, Stanback v State of New York, 163 AD2d 298). It is settled that 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 standards 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). No such affidavit was attached to the instant motion. 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.

Although, as noted above, claimant used the words "intentional conduct" and "negligence" in the proposed claim it contains no specific factual allegations tending to demonstrate that the State's officers, agents or employees engaged in conduct which might be classified as either intentional or negligent conduct other than in failing to timely diagnose and treat claimant's injuries; a cause of action sounding in medical malpractice (Quigley v Jabbur, 124 AD2d 398). As previously noted, a cause of action for intentional tort is barred by the applicable one year Statute of Limitations. Absent specific allegations of negligence other than medical malpractice the claimant has failed to establish the claim's potential merit.

Claimant's motion for late claim relief is, accordingly, denied in its entirety.


October 30, 2001
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated July 16, 2001;
  2. Affidavit of Larry Jackson sworn to July 16, 2001 with exhibit;
  3. Affirmation of Joel L. Marmelstein dated August 20, 2001 with exhibits;
  4. Letter dated August 11, 2001 from Larry Jackson.