New York State Court of Claims

New York State Court of Claims

PEREZ v. THE STATE OF NEW YORK , #2001-028-0538, Claim No. NONE, Motion No. M-63266


Claimant's CCA 10(6) motion granted in part and denied in part. Permission to late file claim for intentional tort granted and denied permission to late file medical treatment claim. The lack of expert affidavit is fatal to claimant's ability to establish merits of medical claim.

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:
Defendant's attorney:
BY: Michael C. Rizzo, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 13, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant's motion for permission to late file a Claim

pursuant to Court of Claims Act § 10(6)

• abAffidavit in Opposition of Michael C. Rizzo, Esq., (Rizzo Opposition), filed March 28, 2001

Claimant seeks the Court's permission to late file a claim against the Defendant. The proposed claim alleges that following a court appearance in New York City, Claimant was required to be housed temporarily at the Ulster Correctional Facility before returning to his home at Woodbourne Correctional Facility. Claimant maintains that upon his arrival at Ulster, he was set upon by at least four correction officers, sustaining injuries from their kicks and baton blows.

After this assault, Claimant further avers that he was denied follow-up medical care at Ulster, and upon his return to Woodbourne, that facility failed to adequately attend to his medical needs.

As a threshold issue, the Court has jurisdiction to review and determine this motion since it was timely filed within the relevant statute of limitations provided by Article 2 of the CPLR.[2]

It is well-settled that the factors a Court must consider in determining a properly framed CCA 10 (6) motion are whether 1) the delay in filing the claim was excusable, 2) the State had notice of the essential facts constituting the claim, 3) the State had an opportunity to investigate the circumstances underlying the claim, 4) the claim appears to be meritorious, 5) 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 6) whether there is any other available remedy (see, Matter of Gavigan v State of New York, 176 AD2d 1117, 1118; Bay Terrace Coop. Section IV v New York State Employees' Retirement System, Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981).

The defendant does not oppose this application on the basis of the statutory factors of notice, opportunity to investigate, or the availability of another remedy. Those factors are therefore presumed to weigh in the claimant's favor (See, Calzada v State of New York, 121 AD2d 988; Cole v State of New York, 64 AD2d 1023, 1024). In fact, contemporaneous documentary evidence, Claimant's ambulatory health records, an inmate injury report, Claimant's letter to the Ulster Correctional Facility's Superintendent and an inmate grievance, each alerted Defendant to the facts of this claim. Additionally, the State has not convinced this Court that it would suffer substantial prejudice if the requested relief were granted. Consequently, these four factors weigh in Claimant's favor.

Claimant offers a variety of excuses for his delay in filing the claim, namely ignorance of the service and filing requirements of the Court of Claims Act; his pain and suffering following his assault; lack of an attorney; transfers between facilities and inability to access the facility law library due to confinement in the special housing unit. Neither ignorance of the law, even for pro se litigants, nor the inability to retain counsel is an acceptable excuse. (Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654 [ignorance of law]; Musto v. State of New York, 156 AD2d 962 [movant's inability to secure counsel was not a sufficient excuse for delay]). Second, Claimant did not submit a physician's affidavit to substantiate his claim of medical incapacity through the statutory period. (Cabral v State of New York, 149 AD2d 453). At first blush, Claimant's travels within the correctional system for Family Court appearances and its attendant disruptions suggests a reasonable excuse for delay. However, Claimant has been housed at Woodbourne Correctional Facility continuously since December 1, 2000, which afforded him nearly two full months to file and serve either his claim or serve a notice of intention. Therefore, the Court finds these excuses to be without merit and weighs this factor against Claimant.

The most decisive component in determining a motion under CCA 10 (6) is whether the proposed claim appears to be meritorious, since it would be futile to permit a meritless claim to proceed. (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10). Claimant must establish 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 Auth., supra, at 11). Generally, in reviewing the allegations in the proposed claim any "[f]acts stated in a motion for leave to file a late claim against the State are deemed true for purpose of motion, when not denied or contradicted in opposing affidavits [citations omitted]." (Sessa v State of New York, 88 Misc 2d 454, 458, affd 63 AD2d 334, affd 47 NY2d 976). The Court will address the causes of actions separately.

Claimant's allegations of an intentional tort warrant little discussion. Where correction officers (or others empowered by governmental entities to use force in carrying out their duties) use more force than is necessary or reasonable under the circumstances, the cause of action is an intentional tort, for which the employer may be liable under the theory of respondeat superior (Jones v State of New York, 33 NY2d 275, 279). The Defendant has not addressed the merits of this claim other than to state "[t]he papers consist solely of conclusory unsubstantiated allegations of excessive force." (Rizzo affidavit ¶11). Succinctly, Claimant has alleged in detail that he was repeatedly struck by correction officers and as a result of those blows, sustained injuries to his back and head. Certain of the purported injuries were documented by photographs taken after the alleged assault. Claimant has alleged the blows were intentional and without justification. Therefore, the Court finds that this claim appears to be meritorious.

The Court also reads the proposed claim as alleging medical malpractice for inadequate treatment (Proposed Claim, ¶ 30 ["[h]e needs an MRI ... test done, because normal X-Rays can not see the damage done"]) and for the failure to provide follow-up care between October 26 and October 31 (Proposed Claim, ¶¶ 20-25) which has resulted in continued pain and suffering. The State has a duty to provide reasonable and adequate medical care to the inmates of its prisons. (Rivers v State of New York, 159 AD2d 788, 789, lv denied, 76 NY2d 701). However, "[w]hile the State has a duty to render adequate medical services to inmates without undue delay, in order for the State to be liable it must be shown that the delays in diagnosis and/or treatment were a proximate or aggravating cause of the claimed injury . . ." (citation omitted). (Marchione v State of New York, 194 AD2d 851, 854-55).

Claimant has not submitted any evidence, nor has he alleged, that DOCS personnel deviated from the appropriate standard of care or otherwise failed to utilize their professional judgment. Inasmuch as these claims implicate patient care, the Court will not accept claimant's own statement that "[h]e needs a MRI..."as the basis for these causes of action sounding in medical malpractice (see, Twitchell v MacKay, 78 AD2d 125; Hale v State of New York, 53 AD2d 1025, mot for lv denied 40 NY2d 804; see, also, Morgan v State of New York, 40 AD2d 891 [expert medical testimony required to establish malpractice involving patient care] ). Similarly lacking is Claimant's non-specific allegation that he was denied follow-up medical care between October 26, 2000 and October 31, 2000. The fact that he did not get his wish and see a doctor during that period[3] is simply insufficient to allege a prima facie case of malpractice or medical negligence. The medical records submitted established treatment, which included, inter alia, diagnostic x-rays and physical therapy, through the end of the year 2000 and thereafter. On this record, the Court finds no basis to excuse the lack of an expert medical affidavit (see, De Paolo v State of New York, 99 AD2d 762 [moving papers included medical records and product literature which indicated medication contraindicated] ), and the failure to provide one is a fatal flaw in Claimant's ability to establish his claim as meritorious. (See, Jolley v State of New York, 106 Misc 2d 550, 551-552; Dunwoody v State of New York, [Ct Cl, Corbett, J.] Claim No. 99581, UID#2000-005-518).[4] As a result, movant has failed to show that his causes of action for malpractice set forth in the proposed claim appears meritorious.

Having considered the relevant statutory factors, the Court finds the balance of factors weigh in Claimant's favor on the cause of action for intentional tort and against the claimant on the causes of action regarding his medical treatment. It is therefore,

ORDERED, that claimant's application for permission to file a late claim against the State of New York is granted in part and denied in part; Claimant is granted permission to late file his claim for intentional tort and denied permission to late file his claim regarding medical treatment. Claimant shall file the claim in the exact form in which it is annexed to the application[5], pursuant to the provisions of Court of Claims Act §§ 11 and 11-a and Rule 206.5 of the Uniform Rules for the Court of Claims, and serve it, in accordance with the provisions of Court of Claims Act §11, either personally or by certified mail return receipt requested, upon the Attorney General, within 45 days of the date of the filing of this Decision and Order.

June 13, 2001
Albany, New York

Judge of the Court of Claims

[1] Exhibit E of the moving papers is the proposed claim, which includes exhibits A-G. The proposed claim and the motion papers were verified by claimant.
[2] The claim accrued on October 26, 2000 and the instant motion was filed on March 21, 2001. Claimant has alleged both a malpractice claim and an intentional tort. This motion is timely made when applying the shorter statute of limitations for intentional tort (CPLR§ 215 [ one year]) and as such, it follows that it is timely made as to the malpractice claim.
[3] Claimant indicates during this period he did speak to a nurse (Proposed Claim ¶ 22).

[4] Recent decisions of the Court of Claims are available in a searchable database on the internet, free of charge. Access may be gained through the Court of Claims website at

[5] The Court will deem as stricken from the Claim the paragraphs set forth in what has been denominated as the "Second Cause of Action" and "Third Cause of Action", with the exception of paragraphs "29", "31", "32", and "33".