New York State Court of Claims

New York State Court of Claims

GONZALEZ v. THE STATE OF NEW YORK, #2002-011-525, Claim No. NONE, Motion No. M-64562


Claimant's motion for permission to late file a claim in which causes of aciton for negligence and medical malpractice are alleged is 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):

Claimant's attorney:
Raymond Gonzalez, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Saul Aronson, Esq.,Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 7, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


This is a motion for permission to late file a claim in which causes of action for negligence and medical malpractice are alleged.

In the proposed claim claimant has alleged he was assaulted by his cellmate after the cellmate learned that claimant was HIV positive and after requests made to the security staff to move claimant or the cellmate went unheeded. Claimant has also alleged that the medical treatment he received for the injuries suffered in the attack was negligent.

When considering a motion for permission to late file a claim the court is required to address six factors enumerated in Court of Claims Act §10(6). The first of those factors is whether there is a reasonable excuse for the delay in filing. According to Claimant, he was unable to timely present this claim because of the severity of the injuries he suffered in the assault. However, claimant has provided copies of grievances he filed shortly after the incident and has failed to explain why he was able to prepare and file grievances but not a notice of intention to file claim or claim.

Other factors to be considered are whether Defendant had notice of the essential facts of the claim and an opportunity to investigate. While the grievances filed by claimant undermine his excuse for the delay in filing, they establish that defendant had notice of the events and an opportunity to investigate. Furthermore, the delay has not produced any discernible prejudice to defendant and none has been raised by the State.

Also to be considered is whether the proposed claim has an appearance of merit. A claim is said to have merit when it is not patently groundless, frivolous or legally defective and there is reason to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). On that basis, the alleged failure to separate claimant from his cellmate after personnel at the facility were made aware of the problem and the allegation of inadequate medical care provides the proposed claim with the necessary appearance of merit.

No adequate alternate remedy is available.

On balance consideration of the factors in CCA §10(6) weigh in favor of granting the motion. Claimant is to serve and file the proposed claim in the manner required by Court of Claims Act §11 and 11-a within thirty days of service upon him of a file-stamped copy of this order.

March 7, 2002
Saratoga Springs, New York

Judge of the Court of Claims

Papers Submitted:

  1. Notice of Motion dated January 2, 2002
  2. Motion for Permission to File a Late Claim dated January 2, 2002 with attachments
  3. Affirmation in Opposition of Saul Aronson dated February 1, 2002
  4. Unsworn Reply Against Affirmation of Raymond Gonzalez dated February 14, 2002