Upon the foregoing papers, this motion is denied.
Claimant seeks permission to file a late claim pursuant to Court of Claims Act
§10(6). The underlying cause of action is timely, within the time
limitations set out in CPLR article 2. The proposed claim alleges that between
September 2001 and December 2001, Claimant was denied proper medical treatment
while being housed at the Auburn Correctional Facility (Auburn).
Claimant alleges that he complained to the medical staff at Auburn about
stomach pains during the months of September, October, November and December of
2001. It is further alleged that Claimant requested to see an outside
specialist but was denied. In December 2001, Claimant's condition worsened and
included the spitting of blood. Claimant then "saw" an outside doctor via video
Telemed. Following that video conference, Claimant was taken to an outside
hospital where he underwent a colostomy procedure for the removal of an abscess
in his intestine.
Claimant alleges in paragraph 11 of the proposed claim that as a result of the
Defendant's failure to properly treat him, he suffered "four months of intense
physical and emotional pain, along with the pain of having to undergo major
surgury [sic] and recuperate therefrom." Claimant further purports that had
medical staff at Auburn timely diagnosed and properly treated Claimant, it would
have "resolved my medical situation, and spared me four months of intense
physical and emotional pain, along with the pain of major life saving surgury
[sic] ..." (paragraph 4 of Claimant's supporting affidavit).
Court of Claims Act §10(6) lists six factors to be given consideration in
determining whether an application for permission to file a late claim should be
granted: (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 to be meritorious; (5) whether the failure
to file or serve upon th 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 the claimant has any other available remedy.
This list is not conclusive, and the presence or absence of any one factor is
not determinative. Rather, it is a balancing of all factors by the Court which
may warrant the granting of an application to file and serve a late claim.
Claimant proffers ignorance of the law as a layman, and his confinement to the
Special Housing Unit (SHU) at Auburn which prevented or limited his access to
the law library, as excuses for his delay in filing. The State argues, and I
agree, that ignorance of the law, and lack of access to the law library, are not
sufficient excuses for failing to timely file a claim.
In considering to whether the state had notice of the essential facts and an
opportunity to investigate those facts, Claimant argues that since it was
employees of the State that were treating him, they were aware of the situation.
The State rebuts that the medical staff at Auburn were the only persons who had
knowledge of the essential facts and that since they are the alleged
tort-feasors, notice cannot be imputed to the State (Witko v State of New
York, 212 AD2d 889, 890).
Claimant argues that the State is not unduly prejudiced in this case since it
was aware of the incident as it took place in a State facility with the
knowledge of State employees "many of whom are still available to the Attorney
General." The State argues that should this application be granted, they would
be "substantially prejudiced by reason of the passage of time and its inability
to presently attempt to reconstruct the events of the occurrence," arguing that
one of its potential witnesses is no longer employed by the Department of
Correctional Services (DOCS). I believe that since the motion was filed only a
couple months late, and the Claimant was at all times in the complete care and
custody of the Defendant, the State would not be prejudiced, and this factor
weighs in favor of Claimant.
Claimant opines that no other state remedy is available to him, and on this
point the Defendant is mute. Therefore this factor appears to weigh in
Finally, the appearance of meritoriousness is often seen as the most essential
factor. It would be superfluous to grant permission to file a late claim which
does not at least have the appearance of merit. It is the burden of the
Claimant to establish that his claim states a valid cause of action (Matter
of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11).
The Defendant argues that this claim lacks merit for two reasons. First,
Claimant relies on conclusory allegations and has failed to provide any support
for them. Second, Defendant argues that this claim sounds in medical
malpractice, and therefore Claimant is required to present the Court with a
physician's affidavit of merit or documentation in support of his
I agree with the Defendant that allegations conclusory in nature and which lack
supportive facts are insufficient to establish a meritorious cause of action.
In the motion at hand, Claimant concludes that had he received proper medical
attention, his surgery would not have been needed. Claimant, however, offers
nothing beyond his lay personal opinion that would allow such a conclusion. I
also find that the proposed late claim sounds in medical malpractice which
requires the submission of a physician's affidavit or affirmation (Jolley v
State of New York, 106 Misc 2d 550). Inasmuch as this claim implicates
patient care, I do not accept Claimant's own opinion that he needed to be seen
by a specialist as the basis for an action sounding in medical malpractice.
Claimant has failed to provide the Court with any creditable allegations to
support his claim in medical malpractice, nor does he give any excuse for the
lack of a expert medical affidavit. Claimant's failure to provide an expert
medical affidavit is a fatal flaw to establishing a claim appearing to be
meritorious on the theory of medical malpractice (Jolley,
A cause of action sounding in medical negligence assumes that the allegations
made by the Claimant are determinable on common knowledge alone, without the use
of expert testimony (Coursen v New York Hospital-Cornell Med. Center, 114
AD2d 254). This theory is very limited and only applies to cases such as
scalding a patient with a hot water bottle (Phillips v Buffalo General
Hospital, 239 NY 188), leaving an electric lightbulb under the sheets
(Dillon v Rockaway Beach Hospital, 284 NY 176), leaving a postoperative
patient unattended in the bathroom (Coursen, supra) and other similar
circumstances where the fault is so obvious that the trier of fact can make a
decision on his/her common knowledge alone and does not need an expert to
explain why this is or is not standard medical procedure.
I do not find that this is a case where the alleged negligence/malpractice in
the treatment of the Claimant at Auburn can be easily determined without expert
medical testimony. It is noted in the claim that Claimant was seen by the
Auburn medical staff regularly in the months prior to his surgery. I find that
an expert opinion is necessary to substantiate allegations that the decisions
made by the Auburn medical staff deviated from the appropriate standard of care,
or otherwise failed to exercise professional judgment. It bears reiterating
that an individual seeking the Court's discretion in granting permission to file
a late claim, particularly where the underlying cause of action would require an
expert's opinion to be sustained, must do something more than one who has timely
filed a claim (cf., Nyberg v State of New York, 154 Misc 2d 199).
Claimant's mere lay opinion does not suffice in establishing a meritorious
Having reviewed and considered the factors set forth in §10(6), I decline
to exercise my discretion on Claimant's behalf. This motion is denied in all