William Rosse (Movant) seeks the Court's permission to late file a claim
against the Defendant sounding in medical malpractice and negligence arising
from Defendant's alleged failure to provide follow-up care to Movant following
knee surgery. Movant, an inmate from July 1, 1995 through June 28, 2000
, ¶2), alleges that the surgery was performed at
Albany Medical Center Hospital (AMCH) and on July 8,
he was discharged from AMCH and returned
to Coxsackie Correctional Facility. Movant alleges that he was advised by his
surgeon that his after care was to include physical therapy. Movant alleges
that other than pain medications, he received no follow-up care or physical
therapy for at least fourteen weeks. As a result of this failure to provide
care, Movant alleges he has been permanently injured. The Defendant opposes the
motion on each of the statutory factors. Defendant further argues the proposed
claim is jurisdictionally defective and that the Fribush Affirmation should be
ignored as being, inter alia
As a threshold issue, the Court must determine whether Movant's application for
permission to late file his claim was timely filed within the relevant statute
of limitations provided by Article 2 of the CPLR. The failure to file such
application within the proscribed time period "creates a jurisdictional defect
and the court is without discretionary power to grant nunc pro tunc
relief" (Byrne v State of New York, 104 AD2d 782, 783, lv denied
64 NY2d 607 [emphasis omitted]). Notwithstanding Defendant's argument to the
contrary, this Claim accrued, at the earliest, upon Movant's return to Coxsackie
Correctional Facility on July 8, 1999, that being the earliest date the
Defendant could have failed to provide follow-up care. Assuming arguendo
the proposed claim alleges only a malpractice claim, the applicable statute of
limitations is two years and six months (CPLR 214-a). As such, the instant
application filed and served on January 4, 2002 (see, CPLR § 2211)
is timely made.
It is well-settled that the factors a 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 (see, Matter of
Gavigan v State of New York, 176 AD2d 1117, 1118; Bay Terrace Coop.
Section IV v New York State Employees' Retirement System, Policemen's &
Firemen's Retirement Sys., 55 NY2d 979, 981).
Movant did not attempt to file a Notice of Intention until after his release
from prison and when he did so he attempted to comply with the General Municipal
Law and not the Court of Claims Act (Rosse Affidavit, ¶ 11).
Neither ignorance of the law, even for pro se litigants, nor Movant's
prior status as an inmate is an acceptable excuse (Innis v State of New
York, 92 AD2d 606, affd 60 NY2d 654 [ignorance of law]; Hall v
State of New York, 85 AD2d 835 [inmate]).
Also unexplained is the delay between Movant's improper service of the Notice of
Intention (Exhibit A) on or about September 26, 2000, the engagement of counsel
in August 2001 and the making of this application. Accordingly, this factor
weighs against Movant's application.
The factors of notice, opportunity to investigate and prejudice can be viewed
together. Defendant asserts that these factors weigh against the pending
application because notice of injury does not equate to notice of litigation and
the passage of time, occasioned by the lack of notice of the essential factors,
has precluded the State from making an investigation while witnesses'
recollections were fresh (Acton Affidavit, ¶¶ 5, 6 & 9).
Movant alleges that his surgeon advised him that physical therapy would be
provided upon his discharge in order to facilitate rehabilitation of his knee.
Unlike an unreported assault or slip and fall, much, if not all, of the
information relating to the treatment provided to Movant, as well as the
instructions given upon his discharge from AMCH, should be contained in his
medical file maintained by Defendant's Department of Correctional Services
(DOCS). Here, the Court only has the affidavit of Defendant's counsel from
which to assess the issues of notice, prejudice and the opportunity to
investigate. Notably, that affidavit is silent with respect to Movant's "Notice
of Intention" which was served upon DOCS, albeit improperly, in September, 2000.
On this record, the Court cannot conclude that Defendant lacked notice of the
essential facts or that Defendant has been precluded from a meaningful
opportunity to investigate the allegations (McLaughlin v County of
Albany, 258 AD2d 778, 779). Moreover, where the information germane to the
very claim itself is likely contained within Defendant's records, Defendant is
not substantially prejudiced (Id.; see also, Parody v State of
New York, Motion No. M-63078, UID #2001-018-097, [Fitzpatrick, J.]). The
Court finds these factors weigh in favor of the instant application.
The most decisive component in determining a motion under Court of Claims Act
§ 10 (6) is whether the proposed claim appears to be 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, 10). Claimant must establish
the proposed claim is not patently groundless, frivolous, or legally defective
and that there is reasonable cause to believe that a valid claim exists.
(Matter of Santana v New York State Thruway Auth., supra, at 11).
Generally, in reviewing the allegations in the proposed claim any "[f]acts
stated in a motion for leave to file a late claim against the State are deemed
true for purpose of motion, when not denied or contradicted in opposing
affidavits [citations omitted]." (Sessa v State of New York, 88 Misc 2d
454, 458, affd 63 AD2d 334, affd 47 NY2d 976).
It is "fundamental law that the State has a duty to provide reasonable and
adequate medical care to the inmates of its prisons," including proper diagnosis
and treatment (Rivers v State of New York, 159 AD2d 788, 789, lv
denied, 76 NY2d 701) and the State may be found liable if its employees
fail to comply with an institution's own administrative procedures and protocols
for dispensing medical care to inmates (Kagan v State of New York, 221
AD2d 7,10). In addition to the facts alleged by Movant, the Court has been
provided with the affirmation of Dr. Fribush who opines, inter alia, that
the failure to provide post-operative therapy is both a deviation from accepted
medical practice and that such failure would cause the type of injury Movant
alleges he has sustained (Fribush Affirmation, ¶¶ 5, 6).
Defendant's arguments that the proposed claim is "unsupported by sworn
statements of fact" (Acton Affidavit, ¶ 10) and "jurisdictionally
defective" (Id, ¶12) are misplaced. Movant did submit an affidavit
in proper form for the Court to consider. As to the alleged shortcomings of the
opinion expressed by Movant's medical expert, in the first instance, Dr.
Fribush is authorized to submit an affirmation (see, CPLR 2106).
Nuzzo v Castellano, 254 AD2d 265, cited by defendant, is not
addressed to an affidavit of merit but rather to an expert's trial testimony and
as such is distinguished. Dr. Fribush's affirmation is sufficiently detailed as
to the sources of information relied upon, the standard of care, deviations from
the standards and causation to support the proposed claim (see, e.g.,
Ford v Empire Medical Group, 123 AD2d 820). The Court is aware of no
precedent which would require the proposed claim be verified for this
application; and since Movant provided a personal affidavit, the Court did not
need to utilize the proposed claim as an affidavit (see, CPLR 105[u]).
Accordingly, the Court is persuaded that Movant has proposed meritorious claims
sounding in malpractice and simple negligence and as such, this factor weighs in
favor of the application.
Turning to the factor of another available remedy, Movant's acknowledgment that
an action has been commenced against the private actors (see, Moran
Reply, Exhibit B) causes that factor to weigh against Movant.
Taking into account the six statutorily prescribed factors, the Court finds
them to weigh in favor of granting Movant's motion for permission to file a
late claim. Movant is therefore directed to file and serve a claim consistent
with the proposed claim and this decision and to do so in conformity with the
requirements of Court of Claims Act §§ 10 and 11 within sixty (60)
days after this order is filed.