New York State Court of Claims

New York State Court of Claims

FRAYER v. THE STATE OF NEW YORK, #2002-031-019, , Motion No. M-64399


Claimant's failure to include expert affidavit is fatal to her motion for permission to file a late claim

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:
New York State Attorney General
BY: GREGORY P. MILLER, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 12, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 4, were read on motion by Claimant for permission to file a late claim:
  1. Claimant's Notice of Motion, filed November 28, 2001;
  2. Claimant's affidavit, sworn to November 27, 2001, with attached exhibits;
  3. Affidavit of Gregory P. Miller, Esq., sworn to January 24, 2002;
  4. Reply Affirmation of William R. Morgan, Esq., dated to January 28, 2002, with attached exhibits.
This is the motion of Yulonda Frayer, pursuant to § 10.6 of the Court of Claims Act (the"CCA"), for permission to file a late claim on her own behalf and as the Administratrix of the Estate of her son, Antuane Cosby. Claimant alleges both negligence and medical malpractice relating to the care received by her son while he was an inmate in the custody of the New York State Department of Correctional Services (DOCS). She also alleges a claim on her own behalf for negligent infliction of emotional distress, apparently stemming from Defendant's investigation of her son's death.

At the same time that Claimant filed this motion, she also filed a claim for the wrongful death of her son stemming from the same basic underlying facts. It is undisputed that Claimant's wrongful death action was filed in a timely manner. What is in dispute are the causes of action Claimant seeks to assert which relate to her decedent's conscious pain and suffering prior to his death and Claimant's own emotional distress claim. These causes of action sound in negligence or medical malpractice. Court of Claims Act § 10(3), in relevant part, provides that "A claim [or notice of intention to file a claim] to recover damages for...personal injuries caused by the negligence or unintentional tort of an officer or employee...shall be filed and served upon the attorney general within ninety days after the accrual of such claim..." The instant claim arose on or about November 28, 1999[1]. Accordingly, Claimant seeks permission to file a late claim, as she neither filed nor served a claim or a notice of intention to file a claim within the required time period.

Upon proper motion, this Court has discretion to permit late filing "at any time before an action asserting a like claim against a citizen of the State would be barred under the provisions of article two of the civil practice law and rules" (Court of Claims Act § 10[6]). Claimant's motion filed on November 28, 2001 is, therefore, timely (see CPLR § 214(5); 214-a). Section 10(6) of the CCA also requires that "[t]he claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application." Indeed, the Claimant must attach the following documents to the motion to late file before this court can exercise its discretion on the application: notice of motion, supporting affidavits, copies of relevant exhibits, a copy of the proposed claim, and an affidavit of service of the motion papers on Defendant.

All of the required papers, except the proposed claim, are attached to the copy of the motion papers before me. Rather than the proposed claim, a copy of the null and void Notice of Claim that Claimant filed prior to her appointment as Administratrix, is attached. Claimant's Notice of Motion refers to the "annexed proposed claim in accordance with subdivision 6 of section 10 of the Court of Claims Act." However, no such proposed claim is attached.

Defendant argues, in paragraph 18 of its affidavit in opposition, that this motion should be denied due to Claimant's failure to attach a proposed claim. Claimant's response to this argument is to explain that the wrongful death claim (which in addition asserts the very causes of action Claimant seeks permission to file with this motion) was filed simultaneously with this motion. Claimant also attaches to her reply affidavit a copy of this claim. The confusion on this issue stems from Claimant's apparent misunderstanding that her timely filed wrongful death claim and the proposed claim required to accompany this motion are one and the same. Claimant apparently intended that the timely filed claim for wrongful death "double" as her proposed claim for purposes of this motion.

Though this situation is unusual, inasmuch as the filed claim was in fact submitted with, but not attached to the motion, I conclude that the motion was properly served and filed and I will assess the motion on its merits.

Subdivision 6 of §10 of the CCA enumerates six factors to be weighed in connection with a late claim motion: (1) whether the delay was excusable; (2) whether Claimant has any other remedy; (3) whether Defendant had notice of the essential facts constituting the claim; (4) whether Defendant had an opportunity to investigate; (5) whether Defendant would be substantially prejudiced; and (6) whether the claim appears to be meritorious. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court in its discretion, balances these factors in making its determination (Bay Terrace Coop. Section IV v. New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

I agree with Claimant on factors three, four and five. Decedent was under the complete control of the State while an inmate at Wende Correctional Facility when the claim accrued. Accordingly, the State had notice of the essential facts constituting the claim. Moreover, Defendant does not dispute Claimant's contentions that the State had opportunity to investigate the circumstances underlying the claim and that permitting the claim to be filed would not result in substantial prejudice to the State. Factors one and two are problematic.

I am not convinced that the delay in filing was excusable. Claimant states in her Affidavit that she was indigent and without the necessary funds to bring a lawsuit during the legally allotted time. Claimant, however, made no motion to proceed as a poor person pursuant to CPLR Article 11. Regardless of whether such an application were filed or granted, Claimant could have but did not serve a notice of intention to file a claim. This would have afforded her two additional years from the date the claim accrued to investigate and file an informed and legally correct claim.

Claimant further asserts that she was ignorant of the facts surrounding decedent's death because DOCS was not forthcoming with information surrounding the decedent's demise, the autopsy report was incomplete, and decedent was incarcerated and unable to communicate the circumstances leading up to death. In addition, Claimant alleges that her previous attorney was incompetent. These excuses are to no avail. First, Claimant correctly cites Matter of Santana v New York State Thruway Auth. (92 Misc 2d 1) and Edwards v State of New York (95 Misc 2d 516) for the contention that ignorance of the facts can be a factor in determining whether a Claimant has a reasonable excuse for filing late. However, the circumstances of these cases are not on point. The Santana court deemed the movant's failure to timely file excusable when movant's attorney, upon diligent efforts to investigate, had no basis to assume the existence of negligence by an employee of the State. In Edwards, the State's negligence was the cause of Claimant's lack of knowledge such that the failure to timely file was excusable.

With respect to the incompetence of Claimant's previous attorney, Claimant refers to Sessa v State of New York (88 Misc 2d 454, aff'd, 47 NY2d 976) for the proposition that the legal incompetence of an attorney can excuse a failure to file. However, this assertion was made in the context of a motion to late file that was denied and legal competence was not the central issue. Rather, Sevillia v State of New York (91 AD2d 792) is controlling; ignorance of the law on behalf of attorney or client is not an acceptable excuse for failing to timely file a claim or notice of intention.

As to the second factor, it is unclear whether Claimant has or had a cause of action against the Erie County Medical Center, though such an action is feasible. While there are certain factors that weigh in Claimant's favor, it would be "futile to permit the filing of a legally deficient claim which would be subject to immediate dismissal, even if the other factors tend to favor the granting of the request" Prusack v State of New York, 117 AD2d 729. Matter of Santana is controlling for the notion that merit exists 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."

Claimant attached to her application medical records, an autopsy report, and written statements made by the decedent regarding his medical care at Wende. Missing is a sworn affidavit of a medical expert that interprets the foregoing exhibits. The merit of Claimant's cause of action sounding in medical malpractice cannot be sustained without verification of an expert and that has not been provided. While "allegations in Claimants' papers are normally deemed true for the purposes of a late claim motion, this rule benefits only the statements of an individual who has the knowledge or expertise required to support the cause of action pleaded" ( Jolley v State of New York, 106 Misc 2d 550).

Claimant has not submitted any evidence that DOCS personnel deviated from the appropriate standard of care or otherwise failed to utilize their professional judgment. Because her proposed claim involves a determination of the appropriate level of patient care, and the exercise of professional judgment, I cannot accept Claimant's own statement that the level of care afforded her son was inadequate as the basis for a cause of action sounding in malpractice (see Twitchell v MacKay, 78 AD2d 125; Hale v State of New York, 53 AD2d 1025, mot for lv denied 40 NY2d 804; see also Morgan v State of New York, 40 AD2d 891 [expert medical testimony required to establish malpractice involving patient care] ). On this record, the Court finds no basis to excuse the lack of an expert's affidavit (see De Paolo v State of New York, 99 AD2d 762 [moving papers included medical records and product literature which indicated medication contraindicated] ), and the failure to provide one is a fatal flaw in Claimant's ability to establish her malpractice claim as meritorious (see Jolley v State of New York, 106 Misc 2d 550, 551-552; Dunwoody v State of New York, Ct Cl, June 26, 2000 [Claim No. 99581 - MacLaw No. 2000-005-518], Corbett, J)[2].

Whether there is merit to a cause of action sounding in medical negligence is a closer call. Medical negligence, in essence, alleges negligent omissions or commissions by State caregivers. However, this theory is limited to "those cases where the alleged negligent act may be readily determined by the trier of the facts based on common knowledge" (Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, 256). 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), leaving a postoperative patient unattended in a bathroom (Coursen v New York Hospital-Cornell Med. Center, supra), and other similar circumstances.

Claimant provides no documentation, besides lay opinion, regarding the factors likely to precipitate a sickle-cell crisis, prevention tactics, and treatment regimens. Nor does Claimant provide a specific treatment protocol that would have been appropriate for the decedent. Lay opinion is insufficient and common knowledge does not lend itself to an understanding of the care and treatment of sickle cell disease. Accordingly, an expert opinion is necessary to demonstrate how Defendant's care of Claimant's decedent was improper. I find no merit in the cause of action sounding in medical negligence because of this omission.

Similarly, Claimant has failed to demonstrate that her claim for negligent infliction of emotional distress has merit. In fact, she does not argue the merit of this cause of action in her papers. She alleges, in conclusory fashion, that Defendant did not properly advise her of the circumstances surrounding her son's death. She does not, however, indicate that she received misinformation, rather just that the State was slow in responding to her requests. This is insufficient as a matter of law. The Appellate Division, Third Department in Dobisky v Rand (248 AD2d 903) held that:
A claim for negligent infliction of emotional distress requires a showing that defendants' conduct unreasonably endangered plaintiffs' physical safety or, as exceptions to this rule, that untruthful information regarding death was transmitted or that a corpse was negligently mishandled (see Johnson v State of New York, 37 NY2d 378, 381-382).

As a result, movant has failed to show that her proposed claim for negligent infliction of emotional distress appears meritorious.

Upon reviewing and balancing all of the factors enumerated in CCA § 10(6), the Court finds that they weigh in favor of Defendant. Claimant's motion for permission to file a late claim as and for negligence, medical malpractice, and negligent infliction of emotional distress, is denied.

June 12, 2002
Rochester, New York

Judge of the Court of Claims

Subsequent events apparently form the basis of Claimant's cause of action for negligent infliction of emotional distress, but no other dates have been provided.
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