New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2002-019-589, Claim No. NONE, Motion No. M-65980


Claimant's motion for permission to file late claim alleging medical malpractice due to failure to treat cracked tooth and toothache is denied.

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:
BY: James E. Shoemaker, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
December 4, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, 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-65980, dated September 18, 2002, and filed October 28, 2002.
  2. Affidavit of Mark A. Smith, in support of motion, sworn to September 18, 2002.
  3. Proposed Claim, sworn to September 18, 2002.
  4. Affirmation of James E. Shoemaker, AAG, in opposition to motion, dated November 12, 2002, and filed November 14, 2002.
This proposed claim arose during Claimant's incarceration at Southport Correctional Facility (hereinafter "Facility") on February 19, 2002. Claimant alleges that for several months prior thereto the Facility was aware that he had been suffering from a cracked tooth and toothache. This proposed claim alleges that Claimant received improper and inadequate treatment for his dental condition including on the aforesaid date when medical personnel merely x-rayed his tooth instead of providing some unspecified treatment. (Proposed Claim, ¶ 5). The proposed claim is stated in terms of negligence, deliberate indifference and constitutional violations.

Before proceeding to the 10 (6) analysis the appropriate theory of liability for this proposed claim must be established. Claimant cites various theories of liability including negligence, deliberate indifference, and violation of his constitutional rights [cruel and unusual punishment]. (Proposed Claim, ¶ ¶ 2 & 8). It is well-settled that when an individual seeks recovery for injuries sustained while under medical care that the possible theories include negligence, ministerial neglect,[1] or medical malpractice. Generally, negligence is the proper theory only in "[t]hose cases where the alleged negligent act may be readily determined by the trier of the facts based on common knowledge [citations omitted]".[2] (Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, 256). However, where the treatment received by the patient is at issue the more specialized theory of medical malpractice is mandated. (Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804). Here, Claimant has specifically raised the issue of the adequacy of his treatment which in turn involves matters beyond common knowledge that will necessitate the input of an expert in the practice of dentistry. (Macey v Hassam, 97 AD2d 919). Accordingly, this Court finds that the proposed claim actually sounds in medical malpractice and, as such, this Court will address Claimant's motion in the context of a proposed claim alleging medical malpractice.

As a threshold issue, the Court notes that it has jurisdiction to review and determine this motion since it was filed within two and one-half years from the date of accrual. (CPLR 214-a; CCA 10 [6]).

Turning to the substance of the motion, the factors 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. there is any other available remedy.

The Court will first examine the factor that has been characterized as the most decisive component in determining a motion under CCA 10 (6), namely whether the proposed claim appears meritorious, 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). In order to establish a meritorious claim, Claimant 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). Furthermore, it is well-settled that an application for permission to file a late claim motion sounding in medical malpractice generally requires further support in the form of an expert's affidavit of merit,[3] for it is only through an affidavit from someone who has the qualifications to allege a deviation from generally accepted medical standards setting forth facts which establish said deviation that the Court may determine the potential merit of the proposed claim. (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. Rather, Claimant provides only his own conclusory statements that the treatment of his tooth was inadequate. Quite simply, Claimant's own statement that the level of care afforded him was inadequate is insufficient to support a medical malpractice cause of action sounding in dental malpractice. In sum, this Court cannot ascertain whether there is reasonable cause to believe that a valid claim exists in the absence of an expert's affidavit addressing the medical malpractice allegations. (Dunwoody v State of New York, Ct Cl, June 26, 2000, Corbett, Jr., J., Claim No. 99581, Motion No. M-60043 [UID No. 2000-005-518]; Fischl v State of New York, Ct Cl, April 30, 2002, Minarik, J., Claim No. None, Motion No. M-64413 [UID No. 2002-031-016]).[4]

Claimant's attempt to fit this proposed claim within a constitutional tort theory of liability must also fail. It is well-settled that a constitutional tort remedy will not be implied when, as is the case here, Claimant's "[c]onstitutional tort allegations may be analogized to an existing common-law tort[s] for which there are adequate alternate remedies". (Augat v State of New York, 244 AD2d 835, 837, lv denied 91 NY2d 814; Brown v State of New York, 89 NY2d 172, 192). The common-law torts discussed hereinabove are adequate protection. (Remley v State of New York, 174 Misc 2d 523; Martinez v City of Schenectady, 276 AD2d 993, affd 97 NY2d 78). Consequently, this Court finds that Claimant has failed to establish that his proposed claim appears meritorious with respect to either a medical malpractice or constitutional tort cause of action.

With respect to the remaining factors, Claimant has failed to offer any excuse for his delay. As such, the absence of an excusable delay weighs against Claimant.

The next three factors of notice of the essential facts, opportunity to investigate and substantial prejudice are typically discussed together, inasmuch as they involve analogous considerations. Claimant argues that the State had actual notice and opportunity from his filed grievance. However, the grievance attached to the proposed claim dated June 3, 2002 was filed with Facility officials well beyond the ninety-day period. The notice and opportunity to investigate envisioned by the statute must be within ninety days after accrual. (Santana, 92 Misc 2d at 11). The State fails to address any of these factors. That having been said, it does not appear that the State would suffer substantial prejudice were the relief granted. Accordingly, the Court finds the factors of notice and opportunity weigh against Claimant, while the lack of substantial prejudice weighs in his favor.

Finally, Claimant argues he has no alternate remedy. The State fails to address this factor. The Court finds 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 statutory factors, including the all-important issue of merit, weigh against Claimant's motion for permission to late file.

In view of the foregoing, IT IS ORDERED that Claimant's motion for permission to file a late claim, Motion No. M-65980, is DENIED.

December 4, 2002
Binghamton, New York

Judge of the Court of Claims

[1]There is no allegation here of ministerial neglect nor any proof thereof. (Kagan v State of New York, 221 AD2d 7).
[2]Such cases have involved scalding a patient with a hot water bottle (Phillips v Buffalo General Hospital, 239 NY 188), leaving an electric light bulb under the sheets (Dillon v Rockaway Beach Hospital, 284 NY 176), and leaving a postoperative patient unattended in a bathroom (Coursen, 114 AD2d 254).
[3]This case does not fall within the narrow exception of cases in which an expert affidavit is not required or when other submissions suffice. (Matter of Caracci v State of New York, 178 AD2d 876 [reports of radiologist found sufficient]).

[4]Unreported decisions from the Court of Claims are available via the Internet at