New York State Court of Claims

New York State Court of Claims

FORSHEY v. THE STATE OF NEW YORK, #2003-031-006, , Motion No. M-65868


Claimant's motion for permission to file 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:
New York State Attorney General
BY: RICHARD B. FRIEDFERTIG, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 18, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 4, were read on motion by Claimant for an order granting permission to file a late claim:
1. Claimant's Notice of Motion, filed September 30, 2002;
2. Affidavit of Steven C. Forshey, sworn to September 21, 2002, with attached exhibits;
3. Affidavit of Richard B. Friedfertig, Esq., sworn to October 18, 2002, with attached exhibit;
4. Reply Affidavit of Steven C. Forshey, sworn to December 16, 2002, with attached exhibits. This is Claimant Steven C. Forshey's motion for permission to file a late claim, pursuant to § 10(6) of the Court of Claims Act (the "CCA"), and for the assignment of counsel to prosecute this claim for him should the late claim motion be granted. Mr. Forshey alleges in his proposed claim that, on April 1, 2002, while incarcerated at Wende Correctional Facility ("Wende"), he slipped and fell in one of the facility's shower areas. As a result of this fall, Mr. Forshey exacerbated an injury previously sustained to his back. The claim, though confusing, also alleges that Claimant did not receive proper medical treatment for this injury, as well as a previously existing foot injury. The relationship of this foot injury to the proposed claim is not clear. Claimant reveals only that he had "twisted his foot" while at Five Points Correctional Facility sometime prior to being transferred to Wende in November of 2002. Claimant's motion papers also refer to an action for falsifying documents, a cause of action he later explains as relating to falsified medical documents and the poor advice he allegedly received from other inmates who work as law clerks at Wende.

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 Claimant's motion, asserting that each of these six factors weighs in Defendant's favor.

This motion was filed approximately seven months after Claimant's accident. As an excuse for his delay, Claimant states that he was unaware of the filing requirements, that he was incarcerated during the relevant period, and that his IQ is below average. With regard to Claimant's alleged mental incapacity, more than Claimant's self serving statement in this regard is required, and no documentation supporting such a contention has been submitted (see Cabral v State of New York, 149 AD2d 453; Goldstein v State of New York, 75 AD2d 613). And, of course, ignorance of the filing requirements is not a valid excuse for failing to file a timely claim. This factor, therefore, weighs in Defendant's favor.

With regard to alternative remedies, it appears that Claimant's only means of redress is an action against the State and this factor weighs in Claimant's favor.

The next three factors covering notice, opportunity to investigate, and prejudice are closely related and may be considered together (Brewer v State of New York, 176 Misc 2d 337, 342). Claimant argues that Defendant had notice of the April 1, 2002 accident as the matter was brought to Correction Officer Schultz's attention at the time of the accident. He also sought medical assistance from the facility infirmary that same day. Finally, he points out that, although he did not file a claim, he did submit a grievance shortly after the incident concerning what he felt were the dangerous conditions that contributed to his fall in the shower. With regard to his allegations concerning his fall in the shower, I find that these three factors weigh in Claimant's favor. With regard to Claimant's contentions relating to any other cause of action he has attempted to allege, I find that these factors weigh in Defendant's favor.

With regard to merit, generally, a proposed claim meets the appearance of merit standard if it passes a two-fold test. It must not be patently groundless, frivolous or legally defective, and upon consideration of the entire record, there must be reasonable cause to believe a valid cause of action exists. (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). While the aforementioned standard on a late filing application clearly places a heavier burden on a party who fails to comply with the statutory requirements, it does not require a claimant to overcome all objections, nor does it suggest that the Court should engage in the kind of fact-finding that would ultimately be necessary to adjudicate the actual merits of the case (Matter of Santana v New York State Thruway Auth., supra, at 11-12 ).

With regard to Claimant's allegations concerning his medical care, Claimant has not submitted any evidence that the medical personnel at Wende deviated from the appropriate standard of care or that they otherwise failed to utilize their professional judgment. In fact, he does not even set forth what his injuries are, let alone how they have not been properly attended to. Because his proposed claim involves the appropriate level of patient care, and the exercise of professional judgment, 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 as a result, movant has failed to show that his proposed claim, as it relates to medical neglect or medical malpractice, appears meritorious.

Claimant has failed to adequately explain, let alone demonstrate, the merit of any cause of action relating to the alleged perjury and falsifying of records briefly mentioned in his proposed claim. For this reason, he has failed to demonstrate that this portion of his proposed claim is meritorious.

What remains is Claimant's alleged cause of action relating to his slip and fall in the shower area of A block at Wende on April 1, 2002. While wetness in a shower area is to be expected, I find that Claimant has alleged more than just wetness. He has alleged both that the shower area was flooded because of improper maintenance by Defendant, and that he himself had given Defendant notice of this problem several months before his incident. Claimant alleges that this flooding is what caused his fall and subsequent injuries. I find that, for the purposes of this application, Claimant has established that his claim for negligence relating to his fall in the shower area on April 1, 2002, has the appearance of merit. Of course, a greater burden rests upon Claimant to establish the merit of his claim at trial.

Upon reviewing and balancing all of the factors enumerated in CCA § 10(6), the Court finds that they weigh in favor of granting Claimant's motion for permission to file a late claim relating to his slip and fall in the shower.

With regard to Claimant's request for assignment of counsel, the Court of Appeals has held that there is no constitutional or statutory requirement that indigents be assigned private counsel in civil litigation of this nature (Matter of Smiley, 36 NY2d 433). Smiley has been interpreted for the proposition that Courts should not routinely approve requests made by indigents for the assignment of private counsel without compensation unless the litigation involves grievous forfeiture or loss of a fundamental right (Wills v City of Troy, 258 AD2d 849, lv dismissed, 93 NY2d 1000; Morgenthau v Garcia, 148 Misc 2d 900, 903). I have examined the underlying proposed claim and find that this matter involves neither a fundamental right, nor is of sufficient complexity to warrant assignment of counsel (see Matter of Smiley, supra; Matter of St. Luke's-Roosevelt Hosp. Ctr., 159 Misc 2d 932, 936, modified and remanded, 215 AD2d 337).

Based upon the foregoing it is hereby:

ORDERED, that Claimant's motion for permission to file a late claim in this matter is granted. Claimant is directed to file and serve a claim identical to the proposed claim submitted in support of this motion, except that it shall assert only a cause of action for negligence relating to Claimant's slip and fall on April 1, 2002; and to do so in conformance with the requirements of CCA §§ 10, 11, and 11-a within sixty (60) days after this order is filed.

February 18, 2003
Rochester, New York

Judge of the Court of Claims