New York State Court of Claims

New York State Court of Claims

LOTT v. THE STATE OF NEW YORK, #2001-016-038, Claim No. None, Motion No. M-63098


Late claim motion alleging, inter alia, medical malpractice by Department of Corrections medical personnel in connection with seizures suffered by claimant, 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):

Alan C. Marin
Claimant's attorney:
Leonard E. Lott
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: James E. Shoemaker, AAG
Third-party defendant's attorney:

Signature date:
June 11, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the motion of Leonard E. Lott for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). His proposed claim asserts medical malpractice and lack of informed consent in connection with his treatment for seizures he suffered at Woodbourne Correctional Facility. Claimant also seeks permission to proceed as a poor person and to have counsel assigned. Subdivision 6 of §10 of the Act enumerates six factors to be weighed in connection with a late claim motion, although the six are not necessarily exhaustive, and the presence or absence of any particular one is not controlling[1]: whether (1) the delay was excusable; (2) claimant has any other remedy; (3) defendant had notice of the essential facts constituting the claim; (4) defendant had an opportunity to investigate; (5) defendant would be substantially prejudiced; and (6) the claim appears to be meritorious.

As to excuse, claimant asserts that the reason for delay "is founded in his belief that the Continuous Treatment Doctrine is controlling." This is not a valid excuse for the purposes of the Act.[2] As to an alternate remedy, it appears undisputed that claimant's sole redress would be in this Court as he complains solely of the actions of Department of Correctional Services personnel.

The next three factors covering notice, opportunity to investigate and prejudice are closely related and may be considered together. Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). In this case, there is no indication in the papers submitted that defendant had any awareness of Lott's claim prior to this motion. However, medical documentation does exist which would presumably allow defendant to investigate and prepare defenses. The issue is thus whether hospital records, without more are sufficient to satisfy these three factors of the Act. While medical malpractice cases may be better documented than certain other types of cases, a finding that they alone are sufficient would effectively make any notice requirement meaningless since it would invariably be satisfied. Accordingly, on these three factors, claimant falls short of compliance, although "substantial" prejudice may be a closer call.

The final factor to be considered is merit. In this case, Lott asserts that he had epileptic seizures on February 6 and 21, 1999, followed by a "[severe] and life threatening" seizure on April 24, 1999, in connection with which he was taken first to a local hospital by ambulance and then to Albany Medical Center by ambulance. The medical records supplied with claimant's papers do appear to document these three seizures and refer to the April 24th seizure as a "grand mal" seizure. Claimant asserts that on February 23, 1999, he was prescribed Dilantin, an anti-seizure medication, which he asserts was stopped on March 23, 1999, i.e., prior to the April 24th grand mal seizure. The medical records also support this assertion; the March 23, 1999 entry states "suggest stop Dilantin." It is this stoppage of which claimant complains. He submits with his papers packaging materials from Dilantin, which state, in relevant part: [warnings] . . . Abrupt withdrawal of [Dilantin] in epileptic patients may precipitate status epilepticus. When, in the judgment of the clinician, the need for dosage reduction, discontinuation, or substitution of alternative antiepileptic medication arises, this should be done gradually."

Defendant argues that claimant's failure to supply the affidavit of a physician is fatal to a finding of merit. There is definitely precedent for such position. See Schreck v State of New York, 81 AD2d 882, 439 NYS2d 162 (2d Dept 1981, Rabin, J., dissenting); 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, post-Schreck appellate decisions are moving toward the more forgiving direction: Caracci v State of New York, 178 AD2d 876, 577 NYS2d 925 (3d Dept 1991), and DePaolo v State of New York, 99 AD2d 762, 472 NYS2d 10 (2d Dept 1984). Claimant himself cites DePaolo, in which it was stated:
We find that claimant established the appearance of a meritorious claim, despite his failure to submit a medical affidavit. Claimant's medical records establish that he suffered from conditions which, according to the packaging literature of Motrin, should have precluded use of the drug. Under these circumstances, the appearance of medical malpractice exists even without an affidavit of a medical expert.

99 AD2d at 762; 472 NYS2d at 11. In the instant case, the packaging literature for Dilantin states that it should not be abruptly stopped, but rather should be gradually discontinued, which claimant's medical records suggest was not done. Under the circumstances, claimant meets the standard set out in Matter of Santana v NYS Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977) for the appearance of merit: (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." It should be noted, however, that while claimant may not need a physician's affirmation for the purposes of this motion, to prevail at trial, he will be required to present expert testimony of a deviation from accepted standards of medical care. See, e.g., Lyons v McCauley, 252 AD2d 516, 675 NYS2d 375 (2d Dept 1998), lv denied 92 NY2d 814, 681 NYS2d 475 (1998).

In sum, having reviewed the six statutory factors of §10.6 of the Act, Lott's motion should be granted. As set forth above, he has also moved for permission to proceed as a poor person and for the assignment of counsel. As he currently has no pending claim, his request is premature; upon filing his claim, he is entitled to make an application for reduction of the $50 filing fee in this Court pursuant to Court of Claims Act §11-a and CPLR 1101(f). Aside from the filing fee, however, there are no other fees in the Court of Claims and in fact, section 27 of the Court of Claims Act prohibits certain costs, fees and disbursements. In addition, as to the assignment of counsel, it is generally not available for civil cases. See Matter of Smiley, 36 NY2d 433, 369 NYS2d 87 (1975).

For the foregoing reasons, having reviewed the parties' submissions,[3] IT IS ORDERED that motion no. M-63098 be granted except to the extent that claimant's request for permission to proceed as a poor person and for the assignment of counsel is denied. IT IS FURTHER ORDERED that within ninety (90) days of the filing of this Decision and Order, claimant shall serve and file his claim in accordance with §§11 and 11-a of the Court of Claims Act.

June 11, 2001
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).
[2] Even if, as claimant asserts, he was continuously treated until December 11, 2000, he would still have been required to file and serve a claim or serve a notice of intention by March 11, 2001, which he did not do.
  1. [3]The following were reviewed: claimant's notice of motion with affidavit in support and proposed claim; claimant's submission filed March 14, 2001 with Exhibits A-J; defendant's affirmation in opposition; claimant's reply affirmation; and claimant's submission filed May 11, 2001 with undesignated exhibits.