New York State Court of Claims

New York State Court of Claims

WILSON v. THE STATE OF NEW YORK, #2003-015-321, Claim No. NONE, Motion No. M-65951


Movant's application for late claim relief denied where Court was unable to decipher any viable cause of action within four corners of proposed claim.

Case Information

DONNA FAYE WILSON The Court hereby amends the caption to name The State of New York as the only appropriate defendant in this matter.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court hereby amends the caption to name The State of New York as the only appropriate defendant in this matter.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Donna Faye Wilson, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael R. O'Neill, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 7, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movant's application for an order permitting service and filing of a late claim pursuant to Court of Claims Act § 10 (6) is denied. The proposed claim filed with the motion papers on October 9, 2002 seeks $40,800,000.00 in damages for various alleged intentional and negligent acts by individuals at medical and psychiatric facilities within New York State commencing in 1971 and continuing to the present. In addition to money damages movant also requests equitable relief including the shredding of a purported autobiography, psychiatric facility records and court records. Additionally, she seeks visitation with her two children and safe passage to the border of New York State. The application is supported by a purported "affidavit of support or merit" which was not sworn to before a notary public and a "medical affidavit" signed by movant herself with exhibits and bearing a notary public's stamp and signature but lacking a jurat.

Defense counsel opposed the motion on the grounds that the claimant "failed to offer enough specificity to provide the defendant (sic) with essential facts of the claim" rendering it impossible for the State to investigate the circumstances surrounding the proposed claim. It is further argued that one or more of the causes of action which movant may be seeking to assert would be barred by the applicable Statute of Limitations and that to the extent movant seeks to assert one or more causes of action for medical malpractice her application lacks a certificate of merit.

Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether 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, whether the claimant has any other available remedy."

The first issue for determination upon a late claim is whether the application is timely. Since movant alleges that the complained of activities began in 1971 and continue to the present the Court will assume for purposes of this determination that the application would be timely as to any cause of action for negligence asserted within three years of the filing of the application pursuant to CPLR § 214, as to any cause of action for medical malpractice accruing less than two years and six months prior to the filing date of the application pursuant to CPLR § 214-a as well as any intentional tort cause of action occurring within one year of the filing of the instant application pursuant to CPLR § 215.

Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965), and the statutory factors are not exhaustive or one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254).

The Court is unable to discern any excuse whatsoever in claimant's unsworn "affidavit of support or merit" for the failure to timely pursue her claim (see Malek v State of New York, 92 AD2d 659). Accordingly, this factor weighs against granting the motion.

The intertwined issues of notice, opportunity to investigate and prejudice will be considered together. The Court is persuaded by defense counsel's argument that the lack of specificity in the proposed claim makes it impossible for the State to investigate the underlying circumstances and promptly ascertain the existence and extent of its liability (Lepkowski v State of New York, ____ AD2d ____, 754 NYS2d 772). The Court is similarly disadvantaged by the non-specific nature of the proposed claim in attempting to determine if and when the State might have had notice of movant's complaints and an opportunity to investigate her allegations. Under the present circumstances these factors weigh against granting the motion.

With regard to the merit of the proposed claim, it is well settled that on a late claim application a movant need only establish that the proposed claim is not patently groundless, frivolous, or legally defective and there is reasonable cause to believe that a valid cause of action exists (see, Matter of Santana v New York State Thruway Auth. 92 Misc 2d 1). Applying this very liberal standard to the proposed claim, the Court is unable to ascertain any cognizable cause of action stated within its four corners. The allegations in the proposed claim, to the extent that they are decipherable, are so conclusory and general in nature that they fail to state the manner in which movant was injured, how the State was negligent, or what intentional conduct injurious to the movant was inflicted upon her by State officers or employees.

In addition, to the extent that the proposed claim may be said to allege a cause of action for medical malpractice, movant has failed to support the application by expert medical evidence. It is now well established that "[e]xpert medical evidence clearly is required to demonstrate that the diagnosis and treatment rendered to claimant by State personnel departed from accepted medical practices and standards" (Matter of Perez v State of New York, 293 AD2d 918).

As to the final statutory factor, it cannot be determined on the basis of movant's submission whether she might have another legal remedy available to her for the alleged wrongs of which she complains.

A review of the above enumerated factors persuades the Court that the application for late claim relief should be and hereby is denied.

May 7, 2003
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated October 3, 2002 with exhibits;
  2. Unsworn "Affidavit of Support or Merit" dated October 3, 2002;
  3. Unsworn "Medical Affidavit dated October 3, 2002 with exhibits;
  4. Proposed Claim dated October 3, 2002;
  5. Affirmation of Michael R. O'Neill dated November 25, 2002 with exhibits.