Juan Calderon (Movant) seeks the Court's permission to late file a claim
against the Defendant sounding in medical malpractice arising from Defendant's
alleged failure to provide proper care to Movant following knee surgery which
resulted in an infection and an additional surgical procedure. Movant alleges
that the claim arose on April 18, 2001, when he was advised of the infection.
The Defendant opposes the motion asserting that Movant has another remedy
available, the proposed claim is not meritorious and Movant has not offered a
reasonable excuse for the delay in filing his claim.
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]). The proposed claim alleges a medical
malpractice claim, for which the applicable statute of limitations is two years
and six months (CPLR 214-a). Defendant does not dispute the accrual date of
April 18, 2001 and as such, the instant application, made before October 18,
2003, is timely.
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).
Of the six statutory factors, Movant has only addressed the first. Movant
offers a variety of excuses for his delay in filing the claim, namely
incarceration, as a native of the Dominican Republic he has a great deal of
difficulty with the English language, lack of familiarity with the law and
advice from a clerk in the prison law library that "he had two years."
, ¶¶ 5-7). Neither ignorance of the law,
even for pro se litigants, nor the Claimant's 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]).
Equally without merit is the excuse that there is a language barrier
(Rodrigues v State of New York
, 143 AD2d 993; Figueroa v City of New
, 92 AD2d 908). When Movant approached the unidentified prison law
clerk for assistance, (sometime after his release from the prison infirmary on
August 3, 2001 [see
, Calderon Affidavit
¶ 4]) the 90 day
period for commencing an action or filing a notice of intention had passed.
Thus the advice he received could not have affected his failure to timely file
Therefore, the Court finds these
excuses to be without merit and weighs this factor against Movant.
The most important factor for the Court to consider is whether the proposed
claim has merit. The standard is met if the claim 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 does exist. (Matter
of Santana v New York State Thruway Authority, 92 Misc 2d, 1) The documents
submitted in support of Movant's application do not set forth sufficient facts
to determine that a valid cause of action exists. Allegations based solely on
vague, conclusory and
over-general statements are not sufficient to demonstrate merit. (Klinger v
State of New York, 213 AD2d 378; Calco v State of New York, 165 AD2d
117, appeal denied 78 NY2d 852).
Furthermore, a finding of merit usually requires an affidavit from an expert
(i.e., a physician) in a medical malpractice claim. (Favicchio v
State of New York, 144 Misc 2d 212) A physician's affidavit is not
necessary where the appearance of medical malpractice can be determined based
upon other submissions (DePaolo v State of New York, 99 AD2d 762 [moving
papers included medical records and product literature which indicated
medication contraindicated]). Here, the Movant has provided only his own
affidavit without any medical documentation or expert opinion. Movant's
detailed recitation of his medical history, set forth in the verified proposed
claim, does not satisfy the exception carved out in DePaolo,
supra, but rather serves to highlight the need for the expert affidavit
(see, Duffen v State of New York, 245 AD2d 653). The failure to
provide one is a fatal flaw in Movant's ability to establish his claim as
meritorious (see, Jolley v State of New York, 106 Misc 2d 550, 551-552;
Dunwoody v State of New York, [Ct Cl, Corbett, J.] Claim No. 99581,
UID#2000-005-518). This factor does not weigh in favor of movant.
Neither party addressed the factors of notice, opportunity to investigate and
prejudice which can be viewed together. On this record, the Court cannot
conclude that Defendant had notice of the essential facts or that Defendant had
a meaningful opportunity to investigate the allegations (McLaughlin v County
of Albany, 258 AD2d 778, 779). However, where the information germane to
the very claim itself is likely contained within Defendant's records, Defendant
is not substantially prejudiced (McLaughlin v County of Albany, 258 AD2d
778, 779); Parody v State of New York, [Ct Cl, Fitzpatrick, J.], Motion
No. M-63078, UID #2001-018-097). The Court finds these factors weigh in favor
of the instant application.
The final factor is whether the movant has any other available remedy. Movant
did not address this factor but has indicated that AMCH may be responsible for
his injuries (Calderon Affidavit ¶8) and named AMCH as a defendant
in the proposed claim(see, footnote 1, supra). As such, Movant
has available another remedy and this fact weighs against the application.
Having considered the relevant statutory factors, the Court finds the balance of
factors weigh against granting Movant's application. It is therefore,
ORDERED, that Claimant's application for permission to file a late claim against
the State of New York is denied.