New York State Court of Claims

New York State Court of Claims

McIVER v. THE STATE OF NEW YORK, #2002-019-509, Claim No. NONE, Motion No. M-64433


Claimant's motion for leave to file a late claim relative to proposed wrongful death claim is denied due to speculative nature of allegations of medical malpractice.

Case Information

FRANCENE McIVER, as Administrator of the ESTATE OF DWAYNE McIVER, Deceased The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
O'CONNOR, GACIOCH, POPE & TAIT, LLPBY: Patricia A. Cummings, Esq., of counsel
Defendant's attorney:
BY: Carol A. Cocchiola, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
January 17, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6). The State of New York (hereinafter "State") opposes the motion.

The Court has considered the following papers in connection with this motion:
  1. Notice of Motion No. M-64433, dated December 6, 2001, and filed December 10, 2001.
  2. Affidavit of Patricia A. Cummings, Esq., in support of motion, sworn to December 6, 2001, with attached exhibits.
  3. Proposed Claim, sworn to November 30, 2001.
  4. Affirmation of Carol A. Cocchiola, AAG, in opposition to motion, dated December 17, 2001, and filed December 17, 2001.
According to the proposed claim, Dwayne McIver, a New York State Trooper, died of a self-inflicted gunshot from his service revolver on April 14, 2000. With respect to this date, it is worth noting at the outset that Claimant's motion papers list the date of death as April 14, 2001. However, the certificate of death designates Mr. McIver's date of death as April 14, 2000. This Court will rely upon the date of death cited in the certificate of death, namely April 14, 2000. Limited Letters of Administration (hereinafter "Letters") were granted to decedent's wife, Francene McIver, on August 27, 2001. Although the proposed claim does not clearly set forth any specific cause of action, it appears Claimant is asserting a wrongful death cause of action.[1]

This Court has the jurisdiction to review and determine a motion seeking permission to file a late claim if the motion is filed within the statute of limitations period attributable to the underlying cause of action. (CCA 10 [6]). A wrongful death cause of action must be commenced within two years from the date of death. (CCA 10 [2]; EPTL 5-4.1). Mr. McIver died on April 14, 2000. Accordingly, this motion, filed on December 10, 2001, is timely and the Court may proceed with an analysis of the statutory factors.

The factors that the Court must consider in determining a properly framed CCA 10 (6) motion are whether:

1. the delay in filing the claim was excusable,

2. the State had notice of the essential facts constituting the claim,

3. the State had an opportunity to investigate the circumstances underlying the claim,

4. the claim appears to be meritorious,

5. the failure to file or serve upon the 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. the Claimant has any other available remedy.

The issue of whether the proposed claim appears meritorious has been characterized as the most decisive component in determining a motion under CCA 10 (6), since it would be futile to permit a meritless claim to proceed. (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10). In order to establish a meritorious claim, Claimants must establish that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid claim exists. (Id., at 11). As such, an applicant on a late filing application faces a higher burden than one who files a timely claim. (Id., at 10-11).

The State objects to the speculative nature of this proposed claim. By way of example, the proposed claim states the following:
Upon information and belief, Dwayne McIver was receiving psychiatric care from one or more persons who may or may not have prescribed certain narcotic prescriptions to him for depression and suicidal ideation. Upon information and belief, it was a departure from accepted care to allow Dwayne McIver to have a service revolver while under psychiatric care which, upon information and belief, may have been provided to him by his employer through a counselor....

(Proposed Claim, ¶ 2; emphasis added).

The supporting attorney's affirmation continues this same pattern:
It is unclear at this time whether the State was involved
in administering the controlled substance prescriptions to Mr. McIver...
However, we are uncertain of the employment status of Michael Kirby, a counselor who may, or may not, have either treated or prescribed the medication to Mr. McIver. At this time, we do not know whether the medication was contraindicated or whether there is indeed a medical malpractice claim relating to the medication as we are still awaiting the medical records....

(Affidavit of Patricia A. Cummings, Esq., ¶ 5; emphasis added).

In short, Claimant concedes the speculative nature of this proposed claim, but explains their intent to put the State "on notice" of this potential claim. (Affidavit of Patricia A. Cummings, Esq., ¶ 5). Although the Court can understand counsel's caution in attempting to file the request for permission to late file as soon as possible after the expired deadline, this does not obviate Claimant's burden of establishing the proposed claim appears meritorious. Towards this end, the Court must be provided with supported factual allegations and a sound theory of liability in order to conclude that there is reasonable cause to believe a valid claim exists. Moreover, to the extent this proposed claim involves a medical malpractice cause of action it must be supported by an expert's affidavit of merit. (Schreck v State of New York, 81 AD2d 882; Jolley v State of New York, 106 Misc 2d 550, 551-552 [while allegations are normally deemed true for the purposes of a late claim, this rule benefits only one who has the requisite knowledge or expertise]). Here, Claimant has not submitted an expert affidavit. In sum, this Court cannot ascertain whether there is reasonable cause to believe that a valid claim exists in light of the speculative nature of the allegations and the absence of an expert's affidavit addressing the medical malpractice allegations. Consequently, this Court finds the factor of merit weighs against Claimant.

The next factor is whether Claimant is able to demonstrate an excuse for the delay in filing the claim. Claimant has failed to offer any excuse other than noting the minimal nature of the delay. Nevertheless, the absence of an excusable delay weighs against Claimant.

Notice of the essential facts, opportunity to investigate and lack of substantial prejudice comprise the next three factors and may be considered together since they involve analogous considerations. Claimant does not address these factors specifically. The State notes that the issue of notice of the essential facts cannot be ascertained until the involvement of any State employee is confirmed in the first instance. Given the uncertainty of any State involvement and the vagueness of this proposed claim, the Court finds that the State was not on notice of the essential facts nor given an opportunity to investigate within ninety days from accrual.[2] Next, Claimant contends the State will not suffer substantial prejudice if this application is granted because the delay was minimal. In opposition, the State fails to demonstrate how it would suffer substantial prejudice were the claim to proceed. Consequently, this Court finds that the factors of notice and opportunity to investigate weigh against Claimant, while the lack of resulting substantial prejudice favors Claimant.

The last factor is the availability of an alternate remedy. Based upon the speculative nature of the proposed claim this Court cannot determine whether Claimant has the option of commencing an action in Supreme Court against the individual mental health providers concerning the medical malpractice allegations. However, if those individuals are ultimately determined to be State employees, the State would ultimately be responsible for defending or indemnifying these physicians. (Ferlito v State of New York, Ct Cl., August 12, 1998, Lane, J., Motion No. M-57395). Additionally, to the extent that the proposed claim incorporates a mere negligence action that cause of action would be limited to the instant action. Accordingly, the Court finds that this factor weighs in Claimant's favor.

Accordingly, upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the Court finds that four of the six factors, including the all important factor of merit, weigh against Claimant's motion for permission to file a late claim pursuant to CCA 10 (6); and in view of the foregoing,

IT IS ORDERED that Claimant's motion for permission to late file, Motion No. M-64433, is DENIED without prejudice.

January 17, 2002
Binghamton, New York

Judge of the Court of Claims

[1]The allegations contained in the proposed claim do not contain any reference to a conscious pain and suffering claim on behalf of the decedent or a derivative claim on behalf of the surviving spouse.
[2]Even if the Court might be willing to find the act of suicide put the State on notice of these essential facts, Claimant has not alleged the same properly or even addressed this issue in the first instance.