Movant's application for late claim relief pursuant to Court of Claims Act
§ 10 (6) is denied. The proposed claim submitted on this application seeks
to recover unspecified damages for alleged medical malpractice by DOCS
personnel in failing to properly diagnose and treat a left knee injury which
movant sustained while playing basketball at Mount McGregor Correctional
Facility on April 25, 2003 and which he re-injured in the same manner on May 7,
2003 and May 31, 2003.
Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if
the applicable Statute of Limitations set forth in article 2 of the CPLR has not
expired, to allow the filing of a late claim upon consideration of the
following factors: "whether the delay in filing the claim was excusable;
whether the state had notice of the essential facts constituting the claim;
whether the state had an opportunity to investigate the circumstances underlying
the claim; whether the claim appears to be meritorious; whether the failure to
file or serve upon the attorney general a timely claim or to serve upon the
attorney general a notice of intention resulted in substantial prejudice to the
state; and whether the claimant has any other available remedy."
The first issue for determination upon a late claim is whether the application
is timely. Movant alleges that the malpractice complained of began in April
2003 and continued periodically until September 25, 2003 when he was examined
using magnetic resonance imaging (MRI) . The Court will assume for purposes of
this determination that the application would be timely as to any cause of
action for medical malpractice accruing less than two years and six months
prior to the filing date of the application pursuant to CPLR § 214-a.
Turning to the statutory factors, this Court has broad discretion in deciding a
motion to permit the late filing of a claim (Ledet v State of New York,
207 AD2d 965), and the statutory factors are not exhaustive or one factor
controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The
most important factor is whether the potential claim has merit, as it would be a
futile exercise to permit litigation of a clearly baseless lawsuit (Savino v
State of New York, 199 AD2d 254).
The excuse advanced for the failure to timely serve and file a claim is
movant's ignorance of the Court of Claims Act requirements. Ignorance of the
law is not an acceptable excuse (Griffin v John Jay College, 266 AD2d
16). Nor does the Court find that confinement in the special housing unit (SHU)
of a correctional facility is a reasonable excuse for the delay (see,
Bommarito v State of New York, 35 AD2d 458, Plate v State of New
York, 92 Misc 2d 1033). Accordingly, this factor weighs against granting
The intertwined issues of notice, opportunity to investigate and prejudice will
be considered together. The Court is disadvantaged by the non-specific nature
of the proposed claim in attempting to determine what specific acts or
omissions of referenced but unnamed medical personnel other than Dr. Crook gave
rise to this proposed claim or whether the State had notice of movant's
complaints and an opportunity to investigate his allegations. Movant's
reliance upon Calzada v State of New York, 121 AD2d 988, and Cole v
State of New York, 64 AD2d 1023 in this regard is misplaced. Under the
present circumstances these factors weigh against granting the motion.
Furthermore, it is well established that a motion for late claim relief
involving a claim for dental or medical malpractice must be accompanied by
expert medical evidence demonstrating that "the diagnosis and treatment rendered
to claimant by state personnel departed from accepted medical practices and
standards" (Perez, Matter of, v State of New York, 293 AD2d 918, 919;
see also, Gonzalez, Matter of, v State of New York, 299 AD2d 675;
Fiore v Galang, 64 NY2d 999; Duffy, Matter of, v State of New
York, 264 AD2d 911). Movant offered no such evidence tending to prove the
merit of his proposed claim alleging negligent diagnosis and treatment of his
injury and this factor weighs against granting the motion.
As to the final factor, it cannot be determined on the basis of movant's
submission whether there is any other remedy available.
Consideration of all of the above factors persuades the Court that the
application for late claim relief should be and thereby is denied.