New York State Court of Claims

New York State Court of Claims

DIAZ v. STATE OF NEW YORK, #2002-018-128, Claim No. NONE, Motion No. M-63160


No expert medical affidavit was provided asserting facts evidencing a meritorious cause of action. Movant's application to file late claim denied based upon the balancing of the six factors pursuant to Court of Claims Act §10(6)

Case Information

BESSIE MARRERO, as Executrix of the Estate of CARLOS DIAZ, Deceased
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:
CARY M. GREENBERG, ESQUIREWolf & Furhman, Esquires
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:
April 11, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


This is a motion for permission to file a late claim. The motion was originally returnable on June 6, 2001, unfortunately, Mr. Diaz passed away shortly thereafter and the motion was stayed pending the appointment of a proper representative for Mr. Diaz's estate. The substitution of Ms. Marrero as executrix of the estate of Mr. Diaz was accomplished by stipulation signed by the parties and ordered by the Court. The stipulation was filed with the Clerk of this Court on February 28, 2002. This motion was rescheduled to be heard on March 6, 2002.

Pursuant to Court of Claims Act §10(6) a proposed claim, containing all of the information required by Court of Claims Act §11, must accompany any late claim application. Attached to the moving papers is a document labeled "Notice of Intention to File a Claim" (Greenberg affirmation, Exhibit A) which contains all of the information required by §11 of the Court of Claims Act, with the exception of the amount of damages claimed. The Court finds that the failure to state the amount of damages being sought is not fatal to the application. (Compare, Muller v State of New York, 184 Misc 2d 500) The Court will treat the "notice of intention to file a claim" as the proposed claim for purposes of this motion.

This document alleges that while Mr. Diaz was incarcerated at Marcy Correctional Facility he made persistent complaints to the medical staff of pain and swelling on the left side of his jaw. "The doctors at the Marcy Correctional Facility dismissed the complaints and rendered no treatment to the claimant [Mr. Diaz]" (paragraph 3 of Exhibit A) In April 2000, Mr. Diaz was transferred to Otisville Correctional Facility and examined by a physician who sent Mr. Diaz to St. Agnes Hospital for a CT scan of his jaw. The CT scan revealed a mass in the jaw. Mr. Diaz was returned to St. Agnes Hospital for a biopsy which revealed that the mass was malignant. Mr. Diaz was then scheduled for surgery to remove the mass but the surgery was cancelled due to the mass being inoperable at that time. Movant asserts that the State committed medical malpractice in the care and treatment of Mr. Diaz resulting in the cancer in his jaw metastasizing rendering him terminally ill.

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).) Movant served a notice of intention upon the attorney general on September 1, 2000 by regular mail. He was informed by an assistant attorney general that service by regular mail is not proper and, accordingly, brought this motion. The motion is timely for any allegations of malpractice committed within two-and-one-half years prior to the date of this application. (Court of Claims Act §10(6); CPLR 214-a)

Moving to the substantive analysis, to determine whether an application for permission to file a late claim should be granted, consideration must be given 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's counsel asserts as an excuse for the failure to timely serve a notice of intention or to file and serve a claim in accordance with Court of Claims Act §10, that Mr. Diaz believed that he had timely and properly served a notice of intention upon the attorney general thereby extending his time to file and serve a claim. Mr. Diaz served the notice of intention by regular mail instead of by certified mail return receipt requested. He was advised by a fellow inmate that the notice was sent certified mail. Neither ignorance of the law nor facts is an acceptable excuse. (Matter of E. K. (Anonymous) v State of New York, 235 AD2d 540; Sevillia v State of New York, 91 AD2d 792; Donovan v NYS Teacher's Retirement System, 87 AD2d 664) This factor weighs against granting movant's application.

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 of the essential facts when it was served, albeit improperly, with the notice of intention on September 1, 2000. It therefore also had an opportunity to investigate the facts at that time. In any event, movant argues that since the State has in its possession all of Mr. Diaz's medical records it will not be prejudiced by the granting of this application. There are certainly medical records from Mr. Diaz's visits to the infirmary, and the State University of New York Hospital (SUNY) which would permit the State to identify witnesses, and investigate the circumstances surrounding Mr. Diaz's visits to the infirmary at Marcy and Otisville Correctional Facilities and SUNY Hospital. The records, coupled with defendant's failure to assert lack of notice, opportunity to investigate or prejudice, leads the Court to find that these factors weigh in favor of movant's application.

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. (Santana v New York State Thruway Authority, 92 Misc 2d 1, 11) The basis for movant's claim is the failure to timely diagnose Mr. Diaz's cancer. Movant has attached only medical records; no expert medical affidavit was provided asserting facts evidencing a meritorious cause of action. (Colson v State of New York, 115 Misc 2d 402) Movant asserts that the malpractice in this case should be apparent to a lay person without the need for an expert affidavit. However, it is impossible to say without an expert affidavit or affirmation whether it was a deviation from the standard of care to not perform other tests or to not diagnose the symptoms Mr. Diaz was presenting to the infirmary as a potential cancerous growth. There was testing performed at SUNY Hospital on July 14, 1999 which indicated that the enlarging mass in Mr. Diaz's left jaw could be related to chronic parotitis. The Court is without the knowledge to determine whether that diagnosis at that time deviated from the acceptable standard of care. Was the growth mis-diagnosed or did the cancer develop thereafter? It appears from the medical records attached to movant's application, that there are no documented visits to the infirmary by Mr. Diaz from August 11, 1999 until April 17, 2000. The circumstances in this case are not such, without an expert affidavit analyzing the relevant facts, that the Court could determine whether there is reasonable cause to believe that a valid cause of action exists. (See, Schreck v State of New York, 81 AD2d 882; Colson v State of New York, supra; Favicchio v State of New York, 144 Misc 2d 212; but compare, DePaolo v State of New York, 99 AD2d 762 (claimant's medical records established condition which based upon the packaging literature of Motrin should have precluded the use of the drug); Caracci v State of New York, 203 AD2d 842 (where radiologist report after x-ray indicated further testing was necessary because the mass found in her chest could be cancer; report was never given to claimant who continued to treat with same facility, no further testing was performed, claimant found a mass on her neck two years later which was cancerous).

The final factor to be considered is whether movant has any other available remedy. Movant's counsel asserts that there is no other remedy. It is possible that movant might be able to bring an individual action against the doctor who performed the testing at SUNY Hospital, depending upon that doctor's relationship with the State. Other than that possibility, there does not appear to be any other remedy available.

Upon balancing all of the factors in the Court of Claims Act §10(6), this Court DENIES the motion without prejudice, with leave to bring an appropriate application within the time frame set forth in CPLR 210(a).

April 11, 2002
Syracuse, New York

Judge of the Court of Claims

The Court reviewed the following documents in determining this motion:

Notice of Motion.............................................................................................1

Affidavit of Cary M. Greenberg, Esquire in support,

together with the exhibits attached thereto..........................................2

Affidavit of Carlos Diaz, in support of said motion.........................................3

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

in opposition to said motion.................................................................4


Stipulation substituting Bessie Marrero as the Executrix of the Estate

of Carlos Diaz, and amending the caption accordingly........................5