3. Affirmation of Heather R. Rubinstein, dated July 29, 2003. This is the
motion of Curtis Brisson for permission to file a late claim pursuant to
§ 10(6) of the Court of Claims Act (the"CCA"). The proposed claim
alleges that between December 26, 2002 and January 20, 2002 (apparently 2003 was
intended), while incarcerated at Willard Drug Treatment Campus, Defendant failed
to properly treat him for bronchitis and pneumonia.
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
With regard to his excuse for the delay, Claimant asserts that he was ill,
both physically and mentally, and that he feared retaliation by Defendant.
These excuses are not documented by Claimant and I find that this factor weighs
in favor of Defendant.
Though not addressed by Claimant, from the papers before me it appears that
Claimant's only remedy for the matters asserted in the proposed claim is in an
action against the State in the Court of Claims. This factor, therefore 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 alleges that Defendant had
notice of the essential facts constituting the claim by reason of his numerous
trips to the facility infirmary and his complaints of suffering. Claimant does
not address the factors of opportunity to investigate or substantial prejudice.
Although Defendant may have been aware that Claimant sought medical treatment,
there is no indication that Defendant was on notice that Claimant was injured
due to Defendant's improper care of his various medical conditions. Claimant's
numberous trips to the infirmary certainly do not put Defendant on notice that
litigation may ensue as a result of Claimant's treatment (Allen v the State
of New York, Ct Cl, December 31, 2001 [Claim No. 103513], Patti, J., UID
#2001-013-032; Bush v the State of New York, Ct Cl, June 28, 2001 [Motion
No. M-62454], Midey, J., UID #2001-009-028). I find that each of these three
factors, therefore, weigh in Defendant's favor.
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 an affidavit of an expert demonstrating how Defendant's care of
Claimant deviated from community standards. Defendant also asserts that
Claimant offers nothing besides his lay opinion that establishes the merit to
his contentions that he was improperly treated.
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, 114 AD2d 254, 256, 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 Defendant's treatment of Claimant
Claimant has not submitted any evidence that medical personnel at Willard
deviated from the appropriate standard of care or otherwise failed to utilize
their professional judgment. 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, mot for 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). As a result, movant has failed to show
that his proposed claim appears meritorious.
Upon reviewing and balancing all of the factors enumerated in CCA
§ 10(6), the Court finds that they weigh in favor of Defendant.
Claimant's motion for permission to file a late claim is denied.