New York State Court of Claims

New York State Court of Claims

LIVERNOIS v. STATE OF NEW YORK, #2003-018-236, Claim No. None, Motion No. M-66734


Motion to allow the filing of a late claim is granted.

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:
Attorney General of the State of New York
By: G. LAWRENCE DILLON , ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 14, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

Movant brings a timely motion seeking permission to file a late claim pursuant to Court of Claims Act § 10(6), CPLR 214-a. Defendant opposes the motion. Movant brought a previous motion requesting permission to file a late claim, which was denied without prejudice. This application seeks to address the deficiencies in the earlier application.

The proposed claim seeks damages for the failure of the medical personnel at Mohawk Correctional Facility (hereinafter referred to as Mohawk) to diagnose movant's bladder cancer. Movant asserts that in September 2001, he had blood in his urine which the medical staff at Mohawk failed to recognize as a symptom of bladder cancer. As a result of this alleged mis-diagnosis, movant now has inoperable cancer and a shortened life span.

On an application for permission to file a late claim, consideration must be given to the six factors listed in Court of Claims Act § 10(6), and any other relevant factors. A balancing of all of the factors, in the discretion of the Court, may warrant the granting of the application to file and serve a late claim; no one factor is determinative (
Bay Terrace Cooperative Section IV Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965).
Movant's application does not raise any new reason for his failure to timely serve a notice of intention or file and serve a claim in accordance with Court of Claims Act § 10
...[.] Movant set forth in his prior application that the reason for his delay was that he was not aware of the mis-diagnosis until a couple of months ago when he was finally taken to Upstate Medical Center and advised that he had incurable and inoperable bladder cancer. It appears from the medical records attached to this application, that movant was diagnosed with bladder cancer as early as February 1, 2002. The original late claim application was filed on June 27, 2002. Movant has submitted the affidavit of a physician which indicates that there was a delay between his presentation of symptoms and initiation of treatment, not diagnosis (see affidavit of Dr. Cary Gross ¶6[a]). There is no indication that movant was otherwise unable to timely bring his claim or serve a notice of intention during the 90 days following his diagnosis (See, Wolf v State of New York, 140 AD2d 692; Erca v State of New York, 51 AD2d 611). Thus, it appears that movant does not have a valid excuse for his delay in timely filing and serving a claim in this matter.
Turning now to the factors of the State's notice of the facts underlying the proposed claim, whether it had an opportunity to investigate the facts, and whether it will suffer prejudice if the application is granted, movant does not address these factors, and it does not appear that the State had notice of the essential facts underlying this claim prior to movant's initial application. However, the State has all of the medical records for its treatment of movant, and it has had notice of the potential claim since June 2002, while movant was still being treated for the condition. Thus, the State should be able to identify witnesses and investigate the circumstances surrounding movant's visits to the infirmary at Mohawk, Walsh Regional Medical Unit, and Upstate Medical Center, thereby minimizing any prejudice.

The next factor, whether the claim appears to be meritorious, is referred to as the most essential factor. Unlike a party who has timely filed a claim, one seeking permission to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious (
See, Nyberg v State of New York, 154 Misc 2d 199). Generally, a proposed claim meets this standard if it 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 exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11). The basis for the proposed claim is the failure to timely diagnose movant's bladder cancer. Attached to this application are copies of movant's medical records and an affidavit from Dr. Cary Gross, an Internist and Assistant Professor of Medicine at Yale School of Medicine, indicating that there was a six-month delay between movant's presentation of symptoms and commencement of treatment. This affidavit fails to state how this delay deviates from the standard of care and fails to link the delay in treatment to movant's existing condition; however, given the slight burden on movant to show potential meritoriousness, the Court finds that movant has provided the bare minimum to allow the Court a reasonable evaluation of potential merit (Compare, Favicchio v State of New York, 144 Misc 2d 212, 213; Van Casteren v State of New York, Ct Cl, unpublished decision of J. Marin, filed April 30, 1999, Claim No. 98201, Motion No. M-58511). This factor weighs in favor of movant's application.
The final factor to be considered is whether movant has any other available remedy. Since movant is incarcerated and all of his medical treatment occurred at the direction of the State, there does not appear to be any other remedy available.
Upon balancing all of the factors in the Court of Claims Act §10(6), this Court GRANTS the motion. Movant is directed to file and serve the proposed claim, properly
verifieddddd[d] in accordance with the Court of Claims Act and all applicable rules of the Court within 30 days of the date this decision and order is filed.

July 14, 2003
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

Notice of Motion......................................................................................1

Affidavit of Gustave J. DeTraglia, Jr., Esquire, in support with

exhibits attached thereto...............................................................2

Affirmation of G. Lawrence Dillon, Esquire, Assistant Attorney

General, in opposition..................................................................3

Reply Affirmation of G. Lawrence Dillon, Esquire, Assistant Attorney



Movant's counsel submits an "Answering Affidavit" which was filed on June 3, 2003, the day before the return date of this motion, in response to defendant's "Affirmation in Opposition." The Assistant Attorney General then submits a "Reply Affirmation" asserting that movant did not appropriately serve this document in that it was received via facsimile which is not an authorized method of service upon the Attorney General. As a result, the Court has not considered the "Answering Affidavit" in reaching this decision.


A client certification is not a proper verification.