New York State Court of Claims

New York State Court of Claims

CALDERON v. THE STATE OF NEW YORK, #2002-028-022, Claim No. None, Motion No. M-64765


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

Case Information

JUAN CALDERON The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
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: Michael C. Rizzo, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 11, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


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

  1. "Motion for Permission to Late File A Claim " with Supporting Affidavit of Juan Calderon (Calderon Affidavit), filed February 22, 2002 with annexed Verified Proposed Claim;
  1. Affidavit in Opposition of Assistant Attorney General Michael C. Rizzo filed March 5, 2002, (Rizzo Affidavit).
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." (Calderon Affidavit, ¶¶ 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 York, 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 his claim.[1] 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.

April 11, 2002
Albany, New York

Judge of the Court of Claims

[1] Given the time frame, the advice movant received might well have been with regard to his ability to file an application pursuant to CCA §10(6) for permission to late file a claim.