New York State Court of Claims

New York State Court of Claims

VASQUEZ v. THE STATE OF NEW YORK, #2003-023-541, Claim No. NONE, Motion No. M-66566


Case Information

OROSMAR VASQUEZ The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Claimant's attorney:
Defendant's attorney:
BY: Saul Aronson, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
MAY 28, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Movant's motion for permission to late file a claim

pursuant to Court of Claims Act § 10(6)

1. "Motion for Permission to Late File Claim" of Orosmar Vasquez, filed March 17, 2003 (Vasquez motion) with proposed Claim.
2. Affirmation in Opposition of Assistant Attorney General Saul Aronson filed May 5, 2003, (Aronson Opposition).

3. Letter from Assistant Attorney General Saul Aronson received April 7, 2003 (Aronson Letter) Exhibit.

Movant, Orosmar Vasquez (Movant), at all times relevant an inmate at Ulster Correctional Facility (Ulster CF), seeks the Court's permission to late file a claim against the Defendant. The Defendant opposes the motion, citing each of the statutory factors, (Aronson Opposition ¶ 7) and the failure of Movant to properly notice his motion (Aronson Opposition ¶ 2; see also Aronson Letter).

The Court previously denied an application by Movant for permission to late file a claim due to Movant's failure to properly notice the motion and for failure to include a proposed claim (Vasquez v State of New York, Ct Cl, Sise, J., Claim No.: None; Motion No.: M-65629, November 27, 2002 [unpublished opn]). In the first instance, Movant has again failed to properly notice his application by failing to include a notice of motion. As such, the application is defective in that it lacks a notice of motion (see 22 NYCRR §206.8[a]) and therefore is not properly before the Court. Moreover, as evidenced by the Assistant Attorney General's letter, and notwithstanding the affidavit of service, Movant apparently did not serve the application upon the Attorney General until sometime after April 1, 2003 (Aronson Opposition ¶2).

Assuming arguendo the Court were to consider the application, it is well-settled that the factors a Court must consider in determining a properly framed Court of Claims Act §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) there is any other available remedy (see Matter of Gavigan v State of New York, 176 AD2d 1117, 1118; Bay Terrace Coop. Section IV v New York State Employees' Retirement System, Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981).

As a threshold issue, the application is timely made within the applicable CPLR Article 2 statute of limitations.

A review of the proposed claim reveals that on April 11, 2002 Movant required emergency medical attention for an injury sustained while cleaning the bathroom sink. Movant alleges that the reconstructive surgical procedure performed at Albany Medical Center "was done in a ver [sic] sloppy and unprofessional manner" (proposed claim) and resulted in the misalignment of the left side of his face.

The first and last factors weigh against Movant's application. The proffered excuses, no access to counsel or the prison library and transfer status (Vasquez Affidavit ¶2) are not valid reasons for failing to timely file the claim (see Plate v State of New York, 92 Misc 2d 1033, 1037-1039 [movement within the system, and any asserted difficulty in obtaining representation by counsel or to otherwise conferring with counsel, does not constitute a reasonable excuse] ). Phrased another way, neither ignorance of the law, even for pro se litigants, nor the status as an inmate is an acceptable excuse (Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654 [ignorance of law]; Hall v State of New York, 85 AD2d 835 [inmate]).

Similarly unavailing is Movant's statement he has no other remedy. As his allegations in the proposed claim only implicate conduct of the Albany Medical Center, Movant has a remedy against that institution.

The factors of notice, opportunity to investigate and prejudice are generally viewed together. Defendant asserts that these factors weigh against the pending application because the passage of time, occasioned by the lack of notice of the essential factors, has precluded the State from making an investigation while witnesses' recollections were fresh (Aronson Opposition, ¶ 6). Unlike an unreported assault or slip and fall, much, if not all, of the information relating to the treatment provided to Movant should be contained in his medical file maintained by Defendant's Department of Correctional Services (DOCS). Here, the Court only has the affidavit of Defendant's counsel from which to assess the issues of notice, prejudice and the opportunity to investigate. On this record, the Court cannot conclude that Defendant lacked notice of the essential facts or that Defendant has been precluded from a meaningful opportunity to investigate the allegations (McLaughlin v County of Albany, 258 AD2d 778, 779). Moreover, where the information germane to the very claim itself is likely contained within Defendant's records, Defendant is not substantially prejudiced (id.; see also Parody v State of New York, Motion No. M-63078, UID #2001-018-097, [Fitzpatrick, J.]). The Court finds these factors weigh in favor of the instant application.

Turning to the issue of merit, this factor is often referred to as the most decisive factor since it would be futile to permit a meritless claim to proceed. (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10). Claimant must establish 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). Although Movant asserts in his affidavit that "medical personnel at Ulster Correctional Facility were aware of my illness during my stay in the prison hospital" (Vasquez Affidavit ¶ 3) nowhere in the proposed Claim does he allege either conduct by the Defendant which is actionable nor has he asserted that the Defendant exerted control over the private actor, Albany Medical Center. As such, the Defendant cannot be liable for any of the alleged negligence (see Fernando v State of New York, Ct Cl, McNamara, J., Claim No. 101136, Motion No. M-61403, UID #2000-011-536). Furthermore, Movant's failure to provide an expert affidavit in support of this malpractice action, on the facts alleged, is fatal to a finding of merit (see Schreck v State of New York, 81 AD2d 882, 439 NYS2d 162; Favicchio v State of New York, 144 Misc 2d 212, 543 NYS2d 871; and Jolley v State of New York, 106 Misc 2d 550, 434 NYS2d 122). This factor also weighs against the instant application.

Taking into account the six statutorily prescribed factors, the Court finds them to weigh against the granting of Movant's motion for permission to file a late claim. The Court therefore declines to exercise its discretion to permit the late filing of the proposed claim and the motion is DENIED.

MAY 28, 2003
Albany, New York

Judge of the Court of Claims