New York State Court of Claims

New York State Court of Claims

WIACKLEY v. THE STATE OF NEW YORK, #2003-030-903, Claim No. None, Motion No. M-66785


late filing motion denied without prejudice to further motion upon proper papers.

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:
Weitz, Kleinick & Weitz, Esqs.By Michael A. Fischbein, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy Ellen Matowik, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 9, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The court read and considered the following papers on claimant's motion for permission

to file a late claim: Notice of Motion, Affirmation and Exhibits; Affirmation in Opposition and


The proposed claim accrued on July 15, 2002 when claimant allegedly suffered burns while undergoing an MRI examination at a radiological facility known as Staten Island Imaging, the corporate identity of a physician by the name of Mark Novick. Claimant's counsel advises that a medical malpractice action was commenced in Supreme Court, Richmond County, on September 25, 2002 and that, in a letter dated January 31, 2003, he was advised by counsel for Staten Island Imaging that the technician who operated the MRI unit was one Glenn Heaney, who was employed by the New York State Institute for Basic Research in Developmental Disabilities. Thus, claimant now seeks permission to file a claim against the State of New York as Mr. Heaney's employer.

Court of Claims Act § 10(6) grants the court the discretion to allow the filing of a late claim[1] after taking into account all relevant factors, including the following: whether claimant's delay was excusable, whether defendant had timely notice of the facts constituting the claim, whether defendant had a timely opportunity to investigate, whether defendant would be substantially prejudiced by an order allowing late filing, whether there is apparent merit to the claim and whether claimant has an alternate remedy (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

While it appears, from the limited information provided to the court on this motion, that claimant may well have a meritorious argument, the submitted papers are an insufficient predicate upon which to base an order granting claimant the relief he seeks. Specifically, the absence of an affidavit from the claimant setting forth the relevant facts precludes the analysis that the statute requires. The affirmation from claimant's counsel, who has no personal knowledge of the events upon which the proposed claim is based, is not an adequate substitute.

With respect to claimant's excuse for not having timely initiated a claim (Court of Claims Act §§ 10(3), 11[a]), it may well be the case that claimant presented himself at the office of what he thought was a private medical provider and that he had no reason to know that the State of New York was involved, a set of facts that could be the basis for the conclusion that his failure to have proceeded against the State was excusable. But, the lack of an affidavit from the claimant prevents the court from reaching that conclusion.

With respect to the "notice," "opportunity to investigate" and "lack of prejudice" factors, neither party addresses the issues of what knowledge the State had concerning the events at issue prior to receiving the instant motion papers, or what records of such events exist. There is no basis in the papers before the court to make an intelligent evaluation of these issues.

Most significantly, there is nothing before the court from anyone with knowledge of the events in question and thus no basis for the court to even begin to inquire as to whether a meritorious cause of action against the State may exist. Moreover, it would seem that the nature of the allegations, at least to the extent that the court is able to infer and construe the same, are such that an affidavit from an expert is required. Although the specification of wrongdoing contained in the bill of particulars in the Supreme Court action encompasses a single nine-page long sentence, it seems that the nature of the claim may be stated somewhat more succinctly – i.e., that claimant was allowed to enter the MRI unit without removing his jewelry, that such resulted in him suffering burns and that he was allowed to remain in the unit despite cries that he was in pain. That allowing a patient to enter an MRI unit wearing metal jewelry is a violation of accepted medical practice and that such can cause burns is not something that is within ordinary common knowledge. Thus, expert opinion is required for the court to conclude that the proposed claim has apparent merit (see e.g. Schreck v State of New York, 81 AD2d 882).

In addition to arguing that claimant's delay was not excusable and that defendant had no notice of the relevant facts and would be prejudiced by an order allowing late filing, defendant submits that Mr. Heaney was a research scientist employed by the State but that he was acting as a "special employee" of Staten Island Imaging when he rendered treatment to the claimant and that the State is therefore not responsible for his alleged misconduct. The burden that the law imposes on a proposed claimant with respect to the apparent merit of the proposed claim is not great (see Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1), and the very language of the defendant's argument in this regard – that Heaney "could be reasonably consider[e]d to have been acting as a special employee of Novick and not on behalf of the State at that time" – demonstrates its inapplicability to the issues before the court on a late filing motion. That something "could be reasonably considered" to be the case does not negate that something else could also be "reasonably considered" to be the case. Claimant's burden, on a motion pursuant to § 10(6), is not to negate every possible defense, but merely to show that the proposed claim is not frivolous, defective or demonstrably without merit and that there is reasonable ground to believe that a cause of action may exist (Matter of Santana, supra.). The material before the court on the issue of Heaney's employment status demonstrates that it is an issue of fact and law that will not, and need not, be resolved on a late filing motion.

Nevertheless, the lack of an affidavit from the claimant and from an appropriate expert precludes the court from finding that there is apparent merit to the proposed claim and, as noted, from making a proper evaluation of the other relevant factors.

Accordingly, the motion is denied without prejudice to a further application upon proper papers, which shall include affidavits from the claimant and an appropriate expert and copies of the relevant medical records.

October 9, 2003
White Plains, New York

Judge of the Court of Claims

[1]Although claimant requests various forms of relief, including permission to file a late notice of claim, there is no notice of claim in Court of Claims practice. The proper motion is for permission to file a late claim. Since both parties have addressed, or attempted to address, the relevant consideration as set forth in the statute, claimant's mischaracterization of his application is of no importance.