New York State Court of Claims

New York State Court of Claims

DEAN v. STATE OF NEW YORK, #2004-018-321, Claim No. NONE, Motion No. M-68345


Motion to file a late claim is denied, making the motion to proceed as a poor person denied as moot.

Case Information

TODD GLENN DEAN The Court has amended the caption sua sponte to reflect the State of New York as the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has amended the caption sua sponte to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Todd Glenn DeanPro Se
Defendant's attorney:
Attorney General of the State of New York
By: Heather R. Rubinstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 9, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Movant brings a motion pursuant to Court of Claims Act § 10(6) for permission to file a

late claim and for permission to proceed as a poor person pursuant to CPLR Article 11. Defendant opposes the motion.

The proposed claim asserts that when Movant arrived at Cape Vincent Correctional Facility, he met with a doctor and inquired about a prescription and physical therapy he had been previously receiving. He was denied the therapy and medication. He continued requesting his medication and physical therapy at repeated sick call visits. He allegedly showed another doctor at the correctional facility some medical documents from his personal physician. He was still denied the medication and therapy. He then threatened a lawsuit and filed a grievance. A few weeks later, on July 22, 2003, he was given the medication and physical therapy and was removed from working all job programs. Movant alleges that the State is liable for failing to provide adequate medical care. He also alleges that the State has failed to move him closer to the mess hall, infirmary, and vocational building to accommodate his disability. The failure to accommodate his needs has, according to Movant, resulted in his suffering physical and mental anguish and unnecessary pain and suffering.

A proposed claimant who fails to timely file and serve a claim or serve a notice of intention may be permitted, upon application, and in the discretion of the Court, to file a claim which complies with § 11 of the Court of Claims Act, at any time before an action asserting a like claim against a citizen of the State would be barred under the provisions of article two of the CPLR (Court of Claims Act §10[6]). The motion is timely (Court of Claims Act §10[6]; CPLR 214-a).

Moving to the substantive analysis, to determine whether an application for permission to file a late claim should be granted, consideration must be given to the six factors listed in Court of Claims Act §10(6), and any other relevant factors. The presence or absence of any one factor is not determinative. (Bay Terrace Cooperative Section IV, Inc., v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965). Instead, it is a balancing of all of the factors by the Court which may warrant the granting of the application to file and serve a late claim.

Movant asserts the delay in filing the proposed claim is excusable because he is not a lawyer and had no access to legal counsel at the prison law library. Ignorance of the law is not an acceptable excuse (Thomas v State of New York, 272 AD2d 650, 651). This factor weighs against granting Movant's application.

Turning to whether the State had notice, an opportunity to investigate the facts underlying the proposed claim, or whether the State would suffer prejudice if the application was granted, these factors, being interrelated, will be considered together. Movant asserts that the State had notice of the essential facts because he is resubmitting his claim. Although unclear what is meant by that assertion, he also states in his claim that he filed a grievance regarding his complaints and wrote the Assistant Commissioner in Albany regarding his complaints around June 30, 2003. He also alleges that he sent to the attorney general's office, by certified mail, his "Medical Paper's" [sic] from his personal physician Dr. Mark Brown, with copies of his medical records from Wende, Gowanda and Cape Vincent Correctional Facilities.[1] Defendant has not denied receipt of those documents; however, the opposing documents do assert that the State lacked notice of the essential facts.

Even if the State received the documents Movant asserts he forwarded, without some identification of the reason those documents were being forwarded, the State would not be able to necessarily anticipate what Movant claims the State did wrong. However, even without adequate notice, the State will not be prejudiced by the late filing of this claim, since Movant's allegations of wrongdoing can be assessed by a review of his medical records, which will reveal potential witnesses, dates and times, and includes Movant's complaints and his treatment records. Moreover, if Movant filed the grievances that he alleges, the State will have further documentation of the facts. The available information will allow the State an opportunity to investigate and eliminate any prejudice if a late claim is permitted to be filed.

The next factor, whether the claim appears to be meritorious, is referred to as the most essential factor. Unlike a party who has timely filed a claim, one seeking permission to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199). Generally a proposed claim meets this standard if it is not patently groundless, frivolous, or legally defective, and upon consideration of the entire record there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11). The basis for Movant's claim is the failure to timely provide necessary medications, therapy and work restrictions for some medical problems relating to Movant's lower back, tail bone, neck, shoulder and leg. He also alleges that his disability warranted other accommodations that were not provided. Since it is unclear what medical problems and disability he suffers from, it is impossible to even assess whether he has a potentially meritorious claim. Allegations that he was denied appropriate medical treatment sounds in medical malpractice, which would require an expert medical affidavit to indicate a potentially meritorious cause of action (Colson v State of New York, 115 Misc 2d 402). The information provided does not permit the Court to determine, without more, that there is reasonable cause to believe that a valid cause of action exists.

The final factor to be considered is whether Movant has any other available remedy. It does not appear that Movant has any other remedy.

Upon balancing all of the factors in the Court of Claims Act §10(6), this Court DENIES the motion without prejudice. Given the Court's determination on Movant's late claim application, the motion for permission to proceed as a poor person is also DENIED as moot.

August 9, 2004
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

Notice of Motion.....................................................................................................1

Unsigned, unsworn affidavit of Todd Glenn Dean, in support, with

exhibits attached thereto..............................................................................2

Affirmation of Heather R. Rubinstein, Esquire, Assistant Attorney

General, in opposition.................................................................................3

Petition of Todd Glenn Dean to proceed as a poor person.....................................4

[1] A copy of an envelope is attached to Movant's motion papers, evidencing he mailed "Legal Mail" with a stamp received by the Attorney General's Office on October 2, 2003.