New York State Court of Claims

New York State Court of Claims

WALKER v. STATE OF NEW YORK, #2002-018-123, Claim No. NONE, Motion No. M-63240


Late claim application denied under Court of Claims Act §10(6).

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:
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
February 25, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Movant has brought this motion seeking permission to file a late claim pursuant to Court of Claims Act §10(6).

A proposed claimant who fails to timely file and serve a claim or serve a notice of intention may be permitted, upon application and in the discretion of the court, to file a claim which complies with §11 of the Court of Claims Act, at any time before an action asserting a like claim against a citizen of the State would be barred under the provisions of article two of the CPLR. (Court of Claims Act §10(6))

The proposed claim alleges:
On the 31, day March [sic], 1998 at 11:30 a.m. at the Riverview Corr. [sic] Facility P.O. Box 247, City of Odgensburg [sic], New York, County of St. Lawrence N.Y. [sic]. A nurse from the medical staff treated me with a medication that caused me prolong [sic] pain and suffering. On March 31, 1998, I was informed by the block officer that I had a call-out to the infermary [sic] after the 11:30 a.m. count cleared. I reported to the infermary [sic] and was told by the nurse that I was scheduled to have my teeth cleaned that afternoon. The nurse gave me four capciles [sic] and stated that I was to take them at that moment to [sic] because inside my medical folder it states that I had a heart mermor [sic] and allergic reaction to morphine, and this was to be taken with precautions [sic] in the event that I have any surgery done. She Stated [sic] that I was to report back at 1:00 p.m. for the scheduled appointment. She said the capciles [sic] was phinercillin [sic] and all four of them must be taken at that moment to insure safty [sic]. [1]

Defendant argues that the application to file a late claim is untimely under article two of the CPLR, whether the proposed claim is found to be sounding in medical malpractice or ordinary negligence.

CPLR 214(5) provides that an action in ordinary negligence must be commenced within three years of the date of accrual. CPLR 214-a provides that an action sounding in medical malpractice must be commenced within two years and six months of the date of accrual. Since the claim seeks recovery for treatment with the wrong medication, which involves the rendition of medical services, it sounds in medical malpractice. (
Scott v Uljanov, 74 NY2d 673; Bleiler v Bodnar, 65 NY2d 65; Angell v State of New York, 278 AD2d 776, but cf., Carter v State of New York, 284 AD2d 810)
A motion is made when it is served. (CPLR 2211) To be timely, movant's application for permission to file a late claim sounding in medical malpractice would have had to be served by October 1, 2000, and for ordinary negligence by March 31, 2001. Movant filed the motion for permission to file a late claim with the Clerk of the Court on March 15, 2001. The affidavit of service attached to the moving papers indicate service was made on the assistant attorney general on September 22, 2000 and January 13, 2001. Movant also served a copy of the motion papers on defendant on September 5, 2001 at the direction of the Court. Defendant denies ever receiving a copy of the moving papers prior to September 5, 2001. Although the affidavit of service refers service of the "Motion For Permission to File a Claim," it is unclear what movant served on the assistant attorney general on September 22, 2000 and January 13, 2001. The documents served were not the moving papers filed with the Clerk of the Court, since they are dated March 6, 2001, and the proposed claim was verified March 9, 2001.[2]
Movant has not submitted any further documentation. If service was not made upon the defendant until September 5, 2001, the application is untimely and permission to file the late claim cannot be granted even if the claim is deemed to sound in ordinary negligence.
Were the Court to assume the application is timely, upon consideration of the factors pursuant to Court of Claims Act §10(6) the motion must still be denied. The Court, in determining whether an application for permission to file a late claim should be granted, gives consideration to the six factors listed in Court of Claims Act §10(6), and any other relevant factors. The presence or absence of any one factor is not determinative. (
Bay Terrace Cooperative Section IV, Inc., v New York State Employees' Retirement System, Policemen's and Firemen's Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965.) Instead, it is a balancing of all of the factors by the Court which may warrant the granting of the application to file and serve a late claim.
Movant asserts as an excuse for his failure to timely serve a notice of intention or to file and serve a claim in accordance with Court of Claims Act §10 that he is not a lawyer and had no access to legal counsel or the prison library within the 90 days after March 31, 1998, due to his illness associated with the incident underlying his claim. The inability to secure legal counsel and ignorance of the filing requirements are not acceptable excuses (
Matter of E. K. (Anonymous) v State of New York, 235 AD2d 540, lv. denied 89 NY2d 815; Musto v State of New York, 156 AD2d 962;) nor are unsubstantiated assertions of incapacitating illness. (Erca v State of New York, 51 AD2d 611)
Turning to whether the State had notice, an opportunity to investigate the facts underlying the proposed claim, or whether the State would suffer prejudice if the application was granted, these factors, being interrelated, will be considered together. Movant asserts that the State had notice because it was aware of his stay in the infirmary due to his illness, and an investigation could have been conducted by interviewing the guards and other persons present in the machine shop at the time of his injury. Given that the claim asserts negligence by the medical staff in treating movant with the wrong medication, it is unclear what occurred in the machine shop. In any event, defendant asserts that it cannot adequately address these factors because the claim is so vague. Based upon the allegations in the claim and documents served upon the defendant, there is insufficient information to place the State on notice of anything but movant's visit to the infirmary. Without notice, there was no opportunity to investigate and given the substantial delay in bringing this application the State would likely suffer prejudice if the filing of the late claim was permitted.

The next factor, whether the claim appears to be meritorious, is referred to as the most essential factor. Unlike a party who has timely filed a claim, one seeking permission to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious. (
See, Nyberg v State of New York, 154 Misc 2d 199) Generally a proposed claim meets this standard if it is not patently groundless, frivolous, or legally defective, and upon consideration of the entire record there is cause to believe that a valid cause of action exists. (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11) Movant has failed to establish the appearance of merit. In order for the Court to have reasonable cause to believe that movant was given the wrong medication, an affidavit from a physician is necessary to establish what medication movant was given, what medication he should have been given, and what injuries movant suffered as a result. (Schreck v State of New York, 81 AD2d 882; Favicchio v State of New York, 144 Misc 2d 212; Colson v State of New York, 115 Misc 2d 402)
The final factor to be considered is whether movant has any other available remedy. Movant did not address this factor; however, it appears that he may not have any other remedy available.

Based upon the foregoing, movant's application is DENIED.

February 25, 2002
Syracuse, New York

Judge of the Court of Claims

In considering this motion, the Court considered the following documents:

Notice of motion.................................................................................................1

Affidavit of Milton Walker in support of motion together with

exhibits attached thereto..........................................................................2

Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney General

in opposition together with exhibits attached thereto..............................3

[1]In reviewing the motion papers filed with the Clerk of the Court, movant has filed an "original" and what appears to be a "copy" of the motion; however upon closer review, the "copy" actually contains a different and much more detailed claim. Everything else attached to the "copy" is identical to the original including the affidavit of service. From defendant's responding papers it appears that the State was served with the less detailed version of the claim. It is that version the Court will use to address this motion.
[2] Both versions of the claim are dated March 6, 2001 and verified March 9, 2001.