New York State Court of Claims

New York State Court of Claims

KELLY v. THE STATE OF NEW YORK, #2003-031-001, , Motion No. M-65875


Claimant's failure to include expert affidavit demonstrating malpractice precludes granting his motion for permission to file a late claim.

Case Information

ROBERT KELLY Caption amended sua sponte to show the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
Caption amended sua sponte to show the only proper 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:
New York State Attorney General
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 24, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 4, were read on motion by Claimant for permission to file a late claim:
1. Claimant's Notice of Motion, filed September 27, 2002, with attachments;
2. Affirmation of Reynolds E. Hahn, affirmed October 22, 2002;
3. Reply Affidavit of Claimant, sworn to November 21, 2002;
4. November 25, 2002 correspondence from Reynolds E. Hahn.

This is the motion of Robert Kelly for permission to file a late claim pursuant to § 10(6) of the Court of Claims Act (the"CCA"). The proposed claim alleges that on June 2, 2001, while incarcerated at Attica Correctional Facility ("Attica"), Claimant was prescribed an inappropriately high dosage of a psycho-tropic medication by the facility's psychiatrist. This, in turn, allegedly led to Claimant later collapsing and suffering multiple herniated discs in his lower back. Claimant seeks damages for his pain and suffering in the amount of $450,000.00.

Subdivision 6 of §10 of the CCA enumerates six factors to be weighed in connection with a late claim motion: (1) whether the delay was excusable; (2) whether Claimant has any other remedy; (3) whether Defendant had notice of the essential facts constituting the claim; (4) whether Defendant had an opportunity to investigate; (5) whether Defendant would be substantially prejudiced; and (6) whether the claim appears to be meritorious. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court in its discretion, balances these factors in making its determination (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

Defendant opposes this application only on the factors of merit and lack of reasonable excuse for the delay. The other four factors are therefore presumed to weigh in the Claimant's favor (see Calzada v State of New York, 121 AD2d 988; Cole v State of New York, 64 AD2d 1023, 1024). Claimant does indeed fail to offer any legally cognizable excuse for his delay. This factor, therefore, tends to weigh slightly in favor of Defendant. The absence of an excuse, however, is only one of the factors considered by the Court in reviewing a §10(6) application, and does not necessarily preclude the relief sought here (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979).

However, of the six enumerated factors in CCA § 10(6), it is the appearance of merit that is most significant, as it would be pointless to grant permission to file late if the proposed claim did not have at least the appearance of merit (see e.g. Prusack v State of New York, 117 AD2d 729). On this point, Defendant opposes the application, pointing out that Claimant has failed to offer the affidavit of an expert to demonstrate how Defendant's care of Claimant deviated from community standards. Indeed, Claimant offers only his own lay opinion to establish the merit of his contentions that he was improperly medicated, and that this was causally related to his alleged collapse and resulting back injuries.

A determination of the merit of the proposed claim involves an analysis of the appropriate level of patient care, and the exercise of professional judgment as these related to Claimant's medical condition. Claimant has failed to submit evidence in this regard. I cannot accept Claimant's own statement that the level of care afforded him was inadequate as the basis for a cause of action sounding in medical malpractice (see Twitchell v MacKay, 78 AD2d 125; Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804; see also Morgan v State of New York, 40 AD2d 891 [expert medical testimony required to establish malpractice involving patient care] ). On this record, I find no basis to excuse the lack of an expert's affidavit (see De Paolo v State of New York, 99 AD2d 762 [moving papers included medical records and product literature which indicated medication contraindicated] ), and the failure to provide one is a fatal flaw in Claimant's ability to establish his claim as meritorious (see Jolley v State of New York, 106 Misc 2d 550, 551-552; Dunwoody v State of New York, Ct Cl, June 26, 2000 [Claim No. 99581], Corbett, J., UID #2000-005-518).

Similarly, to the extent that the proposed claim can be read to allege medical neglect, as opposed to medical malpractice, the Claimant has still failed to demonstrate merit. A cause of action sounding in medical neglect, in essence, alleges negligent omissions or commissions by State caregivers which can be readily determined without the necessity of expert testimony. However, this theory is limited to "those cases where the alleged negligent act may be readily determined by the trier of the facts based on common knowledge" (Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, 256). Such cases have involved scalding a patient with a hot water bottle (Phillips v Buffalo General Hospital, 239 NY 188), leaving an electric light bulb under the sheets (Dillon v Rockaway Beach Hospital, 284 NY 176), leaving a postoperative patient unattended in a bathroom (Coursen v New York Hospital-Cornell Med. Center, supra), and other similar circumstances. I find that no such easily identified cause of action exists here and that an expert opinion is necessary to demonstrate how Claimant's care was improper.

As a result, movant has failed to demonstrate that his proposed claim appears meritorious. Upon the reasons stated above, Claimant's motion for permission to file a late claim is denied.

January 24, 2003
Rochester, New York

Judge of the Court of Claims