New York State Court of Claims

New York State Court of Claims

MAXWELL v. THE STATE OF NEW YORK, #2003-019-516, Claim No. NONE, Motion No. M-66101


Claimant moved for leave to file a late claim relative to proposed wrongful death claim and conscious pain and suffering based upon negligence and medical malpractice relative to State's supervision and treatment of an inmate who refused to eat. Based upon the entire record, including undisputed allegations, motion granted on both negligence and medical malpractice, despite absence of proper expert's affidavit.

Case Information

ELVA MAXWELL, as Administratrix of the Goods, Chattels and Credits, which were of SHANE ALEXANDER MAXWELL, deceased
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:
HOBERMAN & TREPP, P.C.BY: Adam F. Raclaw, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
February 19, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6) asserting causes of action for wrongful death and conscious pain and suffering grounded in both negligence and medical malpractice. The State of New York (hereinafter "State") opposes the motion.

The Court has considered the following papers in connection with this motion:
  1. Notice of Motion No. M-66101, dated November 20, 2002, and filed November 25, 2002.
  2. Affirmation of Adam F. Raclaw, Esq., in support of motion, dated November 20, 2002, with attached exhibits.
  3. Proposed Claim, sworn to November 12, 2002.
  4. Affirmation of James E. Shoemaker, AAG, in opposition to motion, dated December 4, 2002, and filed December 6, 2002, with attached exhibit.
  5. Reply Affirmation of Adam F. Raclaw, Esq., in support of motion, dated January 27, 2003, and unfiled, with attached exhibits.
  6. Proposed Amended Claim, sworn to December 17, 2002.
Decedent Shane Maxwell, an inmate, died on May 20, 2001 at Arnot-Ogden Medical Center (hereinafter "Arnot") after being transferred there three days earlier, on May 17, 2001, from Elmira Correctional Facility (hereinafter "Elmira"). It appears from this record that for some time prior to his death Decedent had refused to eat. According to a case summary prepared by Cheng Yin, M.D., identified as a Clinical Physician II at Elmira, Decedent was transferred to Elmira's infirmary on February 26, 2001 for refusing to eat with, among other things, severe dehydration and undetectable blood pressure. (Claimant's Reply Affirmation, Exhibit C). On March 5, 2001, Decedent was discharged to Elmira's Mental Health Department. Dr. Yin's summary notes that Claimant subsequently refused medical call outs on April 4, 2001 and May 10, 2001. On May 16, 2001, Decedent was readmitted to Elmira's infirmary with severe dehydration. The following day, May 17, 2001, Decedent was transferred to Arnot where he died three days later. Included with Claimant's papers is the State's form "Report of Inmate Death to State Commission of Correction" in which Dr. Yin is noted as the reporting official and the cause of death is listed as "SUDDEN DEATH FROM ASPIRATION??" and the circumstances of death are listed as "[s]evere dehydration and anuria secondary to diabetes was transfered [sic] to AOMC on 5/17/01. He had a cardiac arrest after vomitting [sic] and pronounced dead on 5/20/01 at 6:40 AM." (Reply Affirmation, Exhibit C). There are no other medical records submitted with this motion detailing the medical treatment and supervision provided to Decedent throughout his four months at Elmira.

The proposed Amended Claim describes the State's liability as follows: "[t]he negligent supervision involved a failure to monitor the intestate's food and pharmaceutical intake, resulting in dehydration, hyperglycemia, anemia, unresponsiveness and renal difficulties. The negligent medical care involved the failure to properly treat the intestate's condition." (Amended Claim, ¶ 2). In this Court's view, these allegations may be construed to include both negligence and medical malpractice theories of liability in support of the wrongful death and conscious pain and suffering causes of action. Claimant seeks 10 (6) relief because she has missed the statutory time periods within which to file and serve both a conscious pain and suffering claim, as well as a wrongful death claim.[1]


As a threshold consideration this Court must determine whether it has the jurisdiction to review and determine a motion seeking permission to file a late claim which must be filed within the statute of limitations period attributable to the underlying cause(s) of action. (CCA 10 [6]). Claimant has made the mistake of merging the discussion of conscious pain and suffering into the wrongful death claim. However, wrongful death claims and conscious pain and suffering claims carry different underlying statutes of limitations and, as such, each proposed cause of action must be addressed separately.

A wrongful death cause of action must be commenced within two years from the date of death. (CCA 10 [2]; EPTL 5-4.1). Mr. Maxwell died on May 20, 2001. Accordingly, since this motion was filed on November 25, 2002, it is timely with respect to the proposed wrongful death cause of action. A conscious pain and suffering cause of action based upon medical malpractice must be commenced within two-and-one-half years after the action accrued, whereas a negligence cause of action must be commenced with three years. (CPLR 214-a & 214). The Court will give Claimant the benefit of using the latest possible date that a claim for conscious pain and suffering could be asserted, namely his date of death of May 20, 2001. Using this date, the underlying statute of limitations for a medical malpractice action would not expire on this matter until two-and-one-half years later on November 20, 2003 or for a negligence claim until May 20, 2004. Accordingly, this motion filed on November 25, 2002 was timely filed with respect to the proposed conscious pain and suffering cause of action regarding both theories of liability.

10 (6) Factors

The factors that the 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. the Claimant has any other available remedy.

The first factor is whether Claimant is able to demonstrate an excuse for the delay in filing the claim. Claimant argues that both the Facility and Arnot were slow in releasing medical records. The Court finds this excuse unacceptable since Claimant did not even request said records until May 2002. (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 5).

Notice of the essential facts, opportunity to investigate and lack of substantial prejudice comprise the next three factors and may be considered together since they involve analogous considerations. Claimant argues that the State received notice by way of a letter dated July 18, 2002 and by the mere fact of an inmate's death. The Court agrees. Although this inmate did not die on Elmira's premises, Claimant has submitted sufficient documentation that this inmate's death triggered an investigation by the State Commission of Correction only days after his death. (Claimant's Reply Affirmation, Exhibit C). As such, the Court finds that the State had actual notice of the essential facts and conducted an actual investigation within the statutory time period. The Court also finds a total lack of prejudice to the State since facility and hospital medical records would be available, as well as Dr. Yin's continuing availability. These three factors weigh in Claimant's favor.

The next factor is the availability of an alternate remedy. The alternate remedy here appears to be against Arnot relating to Claimant's three day stay at the hospital prior to his death. Inasmuch as Claimant has not excluded the possibility of liability, in whole or in part, by Arnot, the Court finds that this factor must weigh against Claimant.

The issue of whether the proposed claim appears meritorious has been characterized as the most decisive component in determining a motion under CCA 10 (6), since it would be futile to permit a meritless claim to proceed. (Santana, 92 Misc 2d at 10). In order to establish a meritorious claim, Claimant must establish that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid claim exists. (Id. at 11). To the extent this proposed claim contains allegations of negligent supervision including, among other things, the State's failure to monitor Claimant's food intake, the Court finds the undisputed allegations support a finding of the appearance of merit.

With respect to the allegations of medical malpractice, the Court recognizes the additional principle that an application to late file sounding in medical malpractice generally requires further support in the form of an expert's affidavit, for it is only through an affidavit from someone who has the qualifications to allege a deviation from generally accepted medical standards setting forth facts which establish said deviation that the court may determine the potential merit of the proposed malpractice claim. (Schreck v State of New York, 81 AD2d 882; Jolley v State of New York, 106 Misc 2d 550).

Here, Claimant submitted a two-page report dated January 28, 2003 purporting to have been completed by a medical expert retained by Claimant. (Claimant's Reply Affirmation, Exhibit B). The expert's name has been redacted; no qualifications are set forth; and the report is not signed or otherwise affirmed. As such, to the extent that the proposed Amended Claim includes medical malpractice allegations, this Court must determine whether: (1) an unsigned anonymous expert's report satisfies this obligation; and, if not, (2) does this case fall under the exception to the general rule in which an expert's affidavit is not necessary.

In examining the first question, the Court finds that an unsigned anonymous expert's report does not satisfy a claimant's obligation on a late filing application. Claimant explains these omissions were intentional because: "[p]ursuant to applicable case law, the expert's name has been redacted at this time." (Reply Affirmation, ¶ 6). The Court can only presume that counsel is referring to CPLR 3101 (d) (1) (i) which states that in medical malpractice actions "[a] party, in responding to a request, may omit the names of medical...experts but shall be required to disclose all other information concerning such experts otherwise required by this paragraph." In this Court's view, CPLR 3101 (d) (1) (i) does not supplant Claimant's obligation under CCA 10 (6) to establish for the Court that the proposed claim appears meritorious. Claimant has not cited nor has this Court's own research located any authority which would allow a late filing applicant to meet this burden based upon a redacted expert's report.[2] In short, this Court finds that a supporting expert's affidavit or affirmation in a late filing application must include both the expert's identity and experience thereby providing the foundation for the Court to assess its proper value in determining the factor of merit.[3] Here, Claimant has failed to submit such an affidavit.

Consequently, this case must be viewed as one in which no expert's affidavit has been submitted and, as such, the second question presented to the Court now becomes pivotal, namely whether this case falls under the exception to general rule in which an expert's affidavit is not required with a late filing application involving a medical malpractice claim. Some cases have identified an exception when medical reports or hospital records are sufficient to establish merit of a proposed medical malpractice claim. (Caracci v State of New York, 178 AD2d 876, 877-878 [failure to inform of positive test result; appearance of merit established by radiologist reports]; De Paola v State of New York, 99 AD2d 762). Still other cases have found the totality of the circumstances warrant the application of the exception to the general rule requiring an expert's affidavit on a late filing application. (Zapata v State of New York, Ct Cl, April 20, 2000, Lane, J., Claim No. None, Motion No. M-60903 [UID No. 2000-012-506]).[4] In Zapata, the Honorable John P. Lane was presented with a proposed claim alleging both negligence and medical malpractice arising from a correctional facility's prescription of medication to an inmate. The inmate made complaints of physical side effects for almost two months after receiving the medication, but was advised by medical personnel that there was no concern. Ultimately, the inmate was transferred to a local hospital and advised that he had been prescribed the wrong medicine. The late filing application was supported by medical records but no expert's affirmation. Judge Lane found that although "[t]here is no question that expert testimony at trial will be required in order to establish claimant's cause of action...", the lack of an expert's affidavit was not fatal to that claimant's application in view of the entire record which included the State's failure to dispute the underlying allegations and admission of notice, the relatively short delay, and the complete lack of prejudice. (Zapata, p 5).

Here, this Court has found that the State had actual notice of these essential facts and conducted an actual investigation into this matter resulting in a total lack of prejudice to the State. Additionally, there are undisputed factual allegations that this Claimant was in the State's care for, at least, the four-month period leading up to his transfer to Arnot.[5] Furthermore, Claimant has submitted a "case summary" prepared by the State's own physician which confirms that Claimant's condition and refusal to eat were known to the State as early as February 26, 2001, but the State did not transfer him to a hospital until four months later. In viewing this record as a whole, including the undisputed factual history of this Claimant's known condition for four months, the State's actual notice of these essential facts and opportunity to investigate, this Court finds that Claimant has established that the medical malpractice portion of his proposed amended claim has the appearance of merit notwithstanding the absence of an expert's affidavit.

Upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the Court finds that four of the six factors, including the all-important factor of merit, weigh in Claimant's favor.

Accordingly, for the reasons stated above, IT IS ORDERED, that Claimant's motion for permission to permit the late filing and service of a claim, Motion No. M-66101, is GRANTED. Claimant shall file a claim with the Clerk of the Court and serve a copy of the claim upon the attorney general within sixty (60) days from the date of filing of this Decision and Order with the Clerk of this Court. The service and filing of the claim shall be in conformity with all applicable statutes and rules of the Court with particular reference to CCA 10, 11 and 11-a.

February 19, 2003
Binghamton, New York

Judge of the Court of Claims

[1]A claim for conscious pain and suffering must be commenced within 90 days after the date of accrual. Here, the latest possible date of accrual for a conscious pain and suffering claim was decedent's date of death of May 20, 2001 and, as such, 90 days thereafter expired on August 20, 2001. With respect to the wrongful death claim, an administratrix has 90 days after appointment within which to serve a notice of intention or serve and file a claim. (CCA 10 [2]). Mrs. Maxwell was appointed on May 20, 2002. Accordingly, the deadline to comply with CCA 10 (2) was August 20, 2002. Claimant missed both statutory deadlines.
[2]Which is distinguishable from the second question regarding exceptions to the general rule without regard to the presence of an expert's affidavit.
[3]It is worth noting that counsel's CPLR 3012-a certificate of merit submitted with the original motion papers explaining that he had consulted with a physician who believed that a claim existed was also without value in assessing the factor of merit. (Claimant's Exhibit A). Counsel has confused a certificate of merit under CPLR 3012-a with the expert affidavit required on a motion to late file a medical malpractice claim. An expert affidavit is an integral part of a claimant's burden in establishing a meritorious medical malpractice claim pursuant to CCA 10 (6), whereas the lack of a certificate of merit is not considered a pleading default. (Dye v Leve, 181 AD2d 89).
[4]Unreported decisions from the Court of Claims are available via the Internet at
[5]It appears Claimant may have been transferred to Elmira from another State facility.