New York State Court of Claims

New York State Court of Claims

NIEVES v. THE STATE OF NEW YORK, #2002-005-537, Claim No. NONE, Motion No. M-65267


Claimant's motion for permission to file a late claim sounding in medical malpractice/negligence is denied.

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:
Francisco Nieves
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Patricia M. Bordonaro, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 6, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On July 17, 2002, the following papers, numbered 1 to 3, were read on motion by Claimant for permission to file a late claim:

1, 2 Notice of Motion, Affidavit, and Exhibits Annexed
  1. Opposing Affirmation
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 Claimant's favor.

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 allegations.

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, supra).

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 claim.

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 respects.

August 6, 2002
Rochester, New York

Judge of the Court of Claims