Movant's application for late claim relief is denied. The proposed claim seeks
to recover $100,000.00 in damages arising from alleged instances of dental
malpractice occurring at Mt. McGregor Correctional Facility in Wilton, New York.
While the proposed claim states that the claim accrued on September 3, 2002 it
contains no factual averments tending to show what if any action on the part of
the defendant occurred on that date. Specifically, the proposed claim and
movant's affidavit in support of the motion alleges that movant was denied
proper and appropriate dental care after being transferred from the Suffolk
County Jail to Mt. McGregor Correctional Facility on or about October 10, 2000.
He further alleges that the denial of treatment resulted in the loss of all of
his remaining upper teeth and placement of a full upper denture. He alleges
that if proper dental care had been provided he would have retained his
permanent teeth and would have been fitted with only a partial denture. The
application was not supported by the affidavit or affirmation of a licensed
dentist. Defense counsel opposed the application on the grounds that claimant
has failed to offer a reasonable excuse for his delay and has failed to
demonstrate that the proposed claim has merit. Counsel further alleges that the
claim appears to be barred by the Statute of Limitations for any acts of dental
malpractice occurring in the year 2000 and counsel contends that the State has
been prejudiced by the delay.
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. Movant alleges that the complained of activities began in October
2000 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 dental malpractice accruing less than two years and six months prior to the
filing date of the application pursuant to CPLR § 214-a.
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 excuse advanced for the failure to timely serve and file this dental
malpractice claim is movant's ignorance of the Court of Claims Act requirements.
Ignorance of the law is not an acceptable excuse (Griffin v John Jay
College, 266 AD2d 16). Accordingly, this factor weighs against granting the
The intertwined issues of notice, opportunity to investigate and prejudice will
be considered together. The Court is disadvantaged by the non-specific nature
of the proposed claim in attempting to determine what if any specific acts or
omissions gave rise to this proposed claim and if and when the State might have
had notice of movant's complaints and an opportunity to investigate his
allegations. Under the present circumstances these factors weigh against
granting the motion.
Furthermore, it is well established that a motion for late claim relief
involving a claim for dental or medical malpractice must be accompanied by
expert medical evidence demonstrating that "the diagnosis and treatment rendered
to claimant by state personnel departed from accepted medical practices and
standards" (Perez, Matter of, v State of New York, 293 AD2d 918, 919;
see also, Gonzalez, Matter of, v State of New York, 299 AD2d 675;
Fiore v Galang, 64 NY2d 999; Duffy, Matter of, v State of New
York, 264 AD2d 911). Movant offered no such evidence tending to prove the
merit of his proposed claim alleging negligent denial of care and this factor
weighs against granting the motion.
As to the final factor, it cannot be determined on the basis of movant's
submission whether he might have another legal remedy available for the alleged
wrongs of which he complains.
Consideration of all of the above factors persuades the Court that the
application for late claim relief should be and thereby is denied.