New York State Court of Claims

New York State Court of Claims

ROSSE v. THE STATE OF NEW YORK, #2002-028-021, Claim No. None, Motion No. M-64522


Claimant's application for permission to late file a Claim is granted

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:
HIGGINS & MORANBY: Richard T. Moran, Esq.
Defendant's attorney:
BY: Dennis M. Acton, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 10, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant's application pursuant to Court of Claims Act §10(6) for permission to late file a Claim:

  1. Affirmation in Opposition of Assistant Attorney General Dennis M. Acton filed January 25, 2002, (Acton Affirmation) with annexed Exhibit A;
  2. Reply Affirmation of Richard T. Moran, Esq. filed February 1, 2002 (Moran Reply) with annexed Exhibits A - B.
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 (Rosse Affidavit, ¶2), alleges that the surgery was performed at Albany Medical Center Hospital (AMCH) and on July 8, 1999[2] 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, unsworn.

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.

April 10, 2002
Albany, New York

Judge of the Court of Claims

[1] Although not designated an exhibit, Movant has submitted a "Notice of Claim" with the moving papers which the Court will refer to as the proposed Claim.
[2] The date of discharge from AMCH is alternatively stated as being July 8, 1999 or July 10, 1999.