New York State Court of Claims

New York State Court of Claims

LIVERNOIS v. STATE OF NEW YORK, #2002-018-183, Claim No. NONE, Motion No. M-65432


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: G. LAWRENCE DILLON, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
November 15, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Movant seeks permission to file a late claim pursuant to Court of Claims Act §10(6).

Defendant opposes the motion.

The proposed claim seeks damages for the failure of medical personnel at Mohawk Correctional Facility (hereinafter Mohawk) to diagnose movant's bladder cancer. Movant asserts that in September 2001, he had blood in his urine which the medical staff at Mohawk failed to diagnose as a symptom of bladder cancer. Movant now has inoperable cancer and a shortened life span and is seeking ten million dollars in damages.

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 motion is timely (Court of Claims Act §10(6); CPLR 214-a).

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 indicates that the reason for his failure to timely serve a notice of intention or file and serve a claim in accordance with Court of Claims Act §10 is the same as the basis for the claim; that movant was not aware of the mis-diagnosis until a couple of months ago when he was finally taken to Upstate Medical Center and advised that he had incurable and inoperable bladder cancer. This may be a valid excuse (
See, Edwards v State of New York, 95 Misc 2d 516, 522). However, more than movant's assertion that he was mis-diagnosed is necessary to substantiate this as a valid excuse (Compare, Callanan v State of New York, 42 Misc 2d 740, affd 23 AD2d 937; DeOlden v State of New York, 91 AD2d 1057). This factor therefore 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 does not address these factors, and it does not appear that the State had notice of the essential facts underlying this claim or that it had an opportunity to investigate. In any event, only 10 months have elapsed since the claim allegedly accrued, and the State does have all of the medical records for its treatment of movant. This would permit the State to identify witnesses and investigate the circumstances surrounding movant's visits to the infirmary at Mohawk and Upstate Medical Center, thereby minimizing any prejudice.
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). The basis for movant's claim is the failure to timely diagnose movant's bladder cancer. Movant has attached no medical documentation and no expert medical affidavit asserting facts evidencing a meritorious cause of action (Colson v State of New York, 115 Misc 2d 402). The circumstances in this case do not permit the Court to determine, without an expert affidavit, whether there is reasonable cause to believe that a valid cause of action exists (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 a condition which, based upon the packaging literature of Motrin, should have precluded the use of the drug]).
The final factor to be considered is whether movant has any other available remedy. Since movant is incarcerated and all of his medical treatment occurred at the direction of the State, 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.

November 15, 2002
Syracuse, New York

Judge of the Court of Claims

The Court considered the following documents in deciding this motion:

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

Affidavit of Carlton Livernois, in support.......................................2

Reply Affirmation of G. Lawrence Dillon, Assistant Attorney

General in opposition..........................................................3