New York State Court of Claims

New York State Court of Claims

MAGLIONE v. THE STATE OF NEW YORK, #2003-033-019, , Motion No. M-66474


Synopsis


Permission to file a late claim upon alleged negligence of State in failing to properly instruct, train and supervise correction officers and medical staff and being denied medical treatment is granted.

Case Information

UID:
2003-033-019
Claimant(s):
CHRISTOPHER J. MAGLIONE
Claimant short name:
MAGLIONE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-66474
Cross-motion number(s):

Judge:
JAMES J. LACK
Claimant's attorney:
Christopher J. Maglione, Pro Se
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Kevan J. Acton, Esq., Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 30, 2003
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a motion of Christopher J. Maglione (hereinafter "movant") for permission to file a late claim pursuant to Court of Claims Act §10(6), based upon the alleged negligence of the State in failing to properly instruct, train and supervise correction officers and medical staff as well as being denied medical care.[1]


Movant alleges that on December 27, 2001, at Ulster Correctional Facility he was assaulted by a sergeant. He requested to be placed in protective custody because he was threatened and feared for his life from staff and officers. Movant was transferred to Downstate Correctional Facility maximum prison on December 28, 2001.

Movant served a notice of intention upon the attorney general on November 29, 2002. However, the alleged assault took place on December 27, 2001. Therefore, the notice of intention is untimely with respect to the alleged assault. Movant filed his motion and proposed claim on February 27, 2003, but assault is an intentional tort and the statute of limitations is one year from the date of accrual (CPLR 215). As a result, the assault claim is barred by the statute of limitations.

Movant also brings this motion for the negligence of the State on the grounds of failing to properly instruct, train and supervise correction officers in regard to the assault of movant as well as failing to properly instruct, train and supervise medical staff in that movant was denied medical treatment. The Court does have jurisdiction to review and determine the late claim motion since it was filed within three years from the date of accrual which is the applicable time period for negligence actions against a citizen of the state (CPLR 214).

In his proposed claim, movant alleges that on January 23, 2002, he was transferred to Upstate Correctional Facility. On February 8, 2002, he says he wrote a sick call letter advising Health Services that he was HIV positive since 1999 requesting in the letter emergency bactrim medication. On February 14, 2002, he states he wrote another sick call letter and put it in an envelope marked confidential and urgent. In this letter, movant complained of the lack of treatment for injuries sustained on January 1, 2002 and that he was HIV positive. On February 15, 2002, a doctor and nurse came to movant's cell. He alleges the nurse acknowledged the letter but overlooked the facts about HIV. He further alleges the nurse was loudly disclosing his confidential medical diagnoses such that other prisoners could hear. Movant claims that Dr. Weissman wrote in his medical file that movant should be receiving bactrim. On March 1, 2002, his blood was taken, and tested but movant was not advised of the results until May 22, 2002. On April 26, 2002, he was sent to the medical department where he was again seen by Dr. Weissman. He alleges the doctor admitted she forgot to order the bactrim. The proposed claim further alleges that shortly thereafter movant caught an opportunistic infection. He made emergency sick call requests complaining of abnormal breathing and stated that nurses denied him access to a doctor for thirty days. On May 22, 2002, he was moved to the medical infirmary and once again was seen by Dr. Weissman. On May 25, 2002, a correction officer was allowed in a room during a tele-communication with Albany Medical Center, with an AIDS specialist. Movant was admitted to Albany Medical Center and received emergency bactrim through an IV. On June 7, 2002, movant was discharged and sent back to the prison infirmary but was not given the prescribed bactrim. He was readmitted to Albany Medical Center on June 10, 2002. On July 1, 2002, Dr. Miller started him on AIDS medication to revive his T-cells. On July 7, 2002, he was discharged and transferred to Great Meadow Correctional Facility medical infirmary. On August 27, 2002, he was discharged to the general population cell with a daily pass to pick up his AIDS medication. On August 29 & 30, 2002, he alleges a correction officer denied him access to pick up the medication, which caused a discontinuance of prescribed medication. On August 31, 2002, he claims Nurse Santini denied him a consultation with a doctor.

In order to determine whether to grant a timely made application for permission to file a late claim, the Court must consider, among any other relevant factors, the six statutory factors set forth in Court of Claims Act §10(6):

(1) whether the delay in filing the claim was excusable;
(2) whether the State had notice of the essential facts constituting the claim;
(3) whether the State had an opportunity to investigate the circumstances underlying the claim;
(4) whether the claim appears to be meritorious;
(5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and
(6) whether the movant has another available remedy.


The Court in the exercise of its discretion balances these factors, and, as a general rule, the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979).

Movant attributes the failure to timely file a claim to the fact of his lack of knowledge about the Court, his incarceration and multiple transfers, his limited ability to confer with counsel and lack of legal references. Incarceration has been found to be an inadequate excuse (Hall v State of New York, 85 AD2d 835). It appears that movant does not have another available remedy (Correction Law §24(2)).

The second, third and fifth factors (notice of the essential facts constituting the claim; an opportunity to investigate the circumstances underlying the claim; and whether the delay resulted in substantial prejudice to the State ) are related. The Court will consider these factors together.

As noted previously, movant wrote several sick call letters advising health services that he was HIV positive. At one point, a doctor and a nurse came to his cell. In March of 2002 blood work was taken and he did not get the results until May 2002. Eventually he was taken to Albany Medical Center where he was administered the drug bactrim through an IV. The State had access to these letters and the blood test which would have provided them with notice of the essential facts and an opportunity to investigate. There does not appear to be substantial prejudice to the State.

While the presence or absence of any one of the six factors is not dispositive, (see Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979), the most critical factor always is the apparent merit of the proposed claim. The movant need only establish that the proposed claim is not patently groundless, frivolous or legally defective and there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). If a movant cannot meet this low threshold and the claim is patently without merit it would be meaningless and futile for the Court to grant the application even if all the other factors in Court of Claims Act §10(6) weighed in favor of the movant's request.

According to the proposed claim, movant wrote several sick call letters advising the Health Services he was HIV positive and requested medication on numerous occasions. A blood test was taken in March 2002 and he was not advised of the results until May of 2002. After catching an infection he was eventually taken to Albany Medical Center where he received medical attention. The proposed claim alleges he was discharged from the hospital but was not given his prescribed medication on his return to prison. As a result, he had to be readmitted to Albany Medical Center for further treatment. A duty of care is owed by prison authorities to provide for the health and care of their charges (Matter of Farace v State of New York, 176 AD2d 1228 aff'd 207 AD2d 1045). The Court concludes that there is an appearance of merit to go forward.

Based on the foregoing, the Court concludes that the majority of the statutory factors favor movant's application and therefore, grants movant permission to file a late claim. The Court directs movant to file and serve a claim within forty- five (45) days after this decision and order is filed and to do so in conformity with the requirements of Court of Claims Act §§ 10, 11, and 11-a.






June 30, 2003
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1]
The following papers have been read and considered on movant's motion for permission to file a late claim pursuant to Court of Claims Act §10(6): Notice of Motion dated February 18, 2003 and filed February 27, 2003; Affidavit of Christopher J. Maglione, Pro Se, with annexed Exhibit dated February 18, 2003 and filed February 27, 2003; Affirmation in Opposition of Kevan J. Acton, Esq., dated March 12, 2003 and filed March 13, 2003.