New York State Court of Claims

New York State Court of Claims

VARGAS v. CHRIS DAVIS; Acting Superintendent At Otisville Correctional Facility, HEAD DOCTOR; At Otisville Correctional Facility, NURSE ADMINISTRATOR; At Otisville Correctional Facility, HEAD DOCTOR; at Attica Correctional Facility HEAD DOCTOR; at Eastern Correctional Facility, NURSE Administrator; at Eastern Correctional Facility, HEAD DOCTOR; at Fishkill Correctional Facility, NURSE ADMINISTRATOR; at Fishkill Correctional Facility, NEW YORK CITY MUNICIPAL GOVERNMENT (NYCDOCS), DR. LESTER WRIGHT; Assoc. Commissioner, Health Services, STEPHEN BERNARDI; Deputy Commissioner, Policy & Compliance, THOMAS G. EAGEN; Director of Inmate Grievance Program, All Unnamed Defendants Who At One Time Or Another Have Been In Charge of Plaintiff's Health, #2004-016-024, Claim No. None, Motion No. M-68162


Synopsis


Case Information

UID:
2004-016-024
Claimant(s):
FELIX VARGAS (95-A-4812)
Claimant short name:
VARGAS
Footnote (claimant name) :

Defendant(s):
CHRIS DAVIS; Acting Superintendent At Otisville Correctional Facility, HEAD DOCTOR; At Otisville Correctional Facility, NURSE ADMINISTRATOR; At Otisville Correctional Facility, HEAD DOCTOR; at Attica Correctional Facility HEAD DOCTOR; at Eastern Correctional Facility, NURSE Administrator; at Eastern Correctional Facility, HEAD DOCTOR; at Fishkill Correctional Facility, NURSE ADMINISTRATOR; at Fishkill Correctional Facility, NEW YORK CITY MUNICIPAL GOVERNMENT (NYCDOCS), DR. LESTER WRIGHT; Assoc. Commissioner, Health Services, STEPHEN BERNARDI; Deputy Commissioner, Policy & Compliance, THOMAS G. EAGEN; Director of Inmate Grievance Program, All Unnamed Defendants Who At One Time Or Another Have Been In Charge of Plaintiff's Health
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-68162
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Felix Vargas
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Jeane L. Strickland Smith, Esq., AAG
Third-party defendant's attorney:

Signature date:
May 12, 2004
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is the motion of Felix Vargas for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). In his notice of motion, Mr. Vargas asserts that his "proposed action is . . .for negligence, malpractice and deliberate indifference."[1] Vargas alleges that he has "sustained several internal injuries . . . from approximately July 18th, 1995 . . . until the present date. These internal injuries are attributed to Medications prescribed to Claimant." See ¶4 of claimant's March 7, 2004 affidavit (the "Vargas Aff."). Specifically, claimant alleges that:
On or about the 18th day of July, 1995; Claimant was informed by the Medical Staff at Downstate Correctional Facility that lab results [were] obviously High.

On or about the 09th day of August, 1995; Claimant [was not] informed by Medical Staff at Attica Correctional Facility that medication dosage [was] to be increased from INH 300mg . . .[to] INH 900mg.

On or about the 15th day of September, 1995; Claimant now knows that his Lab Results were once again . . . deemed as being abnormal.

On or about the 11th day of October, 1995; Claimant's Lab Result sheet clearly indicates that the results are high.


See ¶5 of the Vargas Aff.

As an initial matter, it should be noted that to the extent claimant alleges injuries continuing to the present date, he could serve and file a claim which would be timely at a minimum with regard to treatment rendered in the 90 days prior to such claim, and a late claim motion would not be necessary for such time period. See §10.3 of the Court of Claims Act. Moreover, if the continuous treatment doctrine were to apply in this case, claimant would now be able to serve and file a timely claim without the need for a late claim motion. See CPLR 214-a and Ogle v State of New York, 142 AD2d 37, 535 NYS2d 190 (3d Dept 1988). However, the information submitted by claimant is insufficient to determine whether such doctrine applies.[2]

To the extent that a late claim motion is necessary for Mr. Vargas, six factors enumerated in the Act must be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.[3]

The first three factors – whether defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this motion are intertwined and may be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). There is no indication that defendant was advised of this claim until the instant motion was made, many years after the specific events alleged by claimant.[4] Moreover, the facts alleged by claimant are quite scant. For example, he does not specify what type of lab test or medication is at issue. As such, defendant is prejudiced in its ability to investigate this claim. Claimant fails to satisfy these three factors of the Act.

As to an alternate remedy, claimant refers to a 42 U.S.C. §1983 action that he has commenced. With regard to excuse, claimant states that he is a layperson and was unfamiliar with the law. Such is not a valid excuse for the purposes of the Act. See, e.g., Matter of E.K. (Anonymous) v State of New York, 235 AD2d 540, 652 NYS2d 759 (2d Dept 1997), lv denied 89 NY2d 815, 659 NYS2d 856 (1997).

Finally, it must be determined whether the proposed claim appears meritorious. As set forth above, claimant has provided virtually no facts, e.g., what type of lab tests or medication are at issue. Moreover, he has submitted no affidavit of a physician and no medical records. Claimant fails to meet the standard set forth in Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977) for the appearance of merit: (i) the claim "must not be patently groundless, frivolous or legally defective" and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, "there is reasonable cause to believe that a valid cause of action exists."

For the foregoing reasons, having reviewed the parties' submissions[5], IT IS ORDERED that motion no. M-68162 be denied.


May 12, 2004
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims





  1. [1]Vargas has not submitted a proposed claim with his papers as is required by the Act, but such issue need not be addressed in view of the Court's decision on this motion.
  2. [2]Because it is unknown whether the doctrine of continuous treatment applies here and in view of the decision rendered on this motion, it is unnecessary to reach defendant's arguments that the statute of limitations has expired with regard to Vargas' claim.
  3. [3]See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  4. [4]Claimant alleges that defendant knew of this claim because he filed an action pursuant to 42 U.S.C. §1983, but claimant does not state when such action was filed.
  5. [5]The following were reviewed: claimant's notice of motion with affidavit in support; defendant's affirmation in opposition with exhibit 1; and claimant's April 17, 2004 letter.