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 $2,000,000 in damages for alleged medical malpractice by DOCS
personnel in failing to properly diagnose and treat movant's hepatitis C while
he was housed at Fishkill Correctional Facility and Mt. McGregor Correctional
Facility between March 7, 2002 and September 19, 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 motion is whether the
application is timely. Movant alleges that the malpractice complained of began
on March 7, 2002 and continued periodically until September 19, 2003 when he
began treatment for his condition. 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 (i.e., August 23,
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). The statutory factors are not exhaustive nor is 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 status as a layperson and his 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). In addition, the Court finds that neither
confinement in a correctional facility nor movant's conclusory allegation of
physical incapacity is a reasonable excuse for the delay (see, Matter
of Thomas v State of New York, 272 AD2d 650, 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 motion.
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 related in the chronology of events attached to the claim are alleged
to constitute acts of malpractice. Nor can it be determined from the motion
whether the State had notice of movant's complaints and an opportunity to
investigate his allegations. These factors too weigh against the movant.
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" (Matter of Perez v State of New York, 293 AD2d 918, 919;
see also, Matter of Gonzalez v State of New York, 299 AD2d 675;
Fiore v Galang, 64 NY2d 999; Matter of Duffy 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 illness and
this factor favors the defendant.
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 this
application for late claim relief should be denied.