New York State Court of Claims

New York State Court of Claims

CHIRSTMAN v. THE STATE OF NEW YORK, #2004-015-438, Claim No. NONE, Motion No. M-68855


Late claim application lacking affidavit of medical expert tending to prove State's deviation from accepted medical standards and practiced denied in case involving alleged failure to diagnose and treat movant's hepatitis C.

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:
Paul Christman, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Saul Aronson, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 29, 2004
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


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, 2004[1]).

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.

October 29, 2004
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Motion for permission to file a late claim sworn to July 20, 2004;
  2. Notice of motion dated August 10, 2004 with exhibits;
  3. Affirmation of Saul Aronson dated August 27, 2004.

[1]Although movant submitted some paperwork related to this motion on July 26, 2004 the notice of motion, proposed claim and supporting affidavit were not filed until August 23, 2004.