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). The motion is timely (Court of Claims Act
§10; 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
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
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.
The Court has considered the following documents in deciding this motion:
Unsigned, unsworn affidavit of Todd Glenn Dean, in support, with
Affirmation of Heather R. Rubinstein, Esquire, Assistant Attorney
Petition of Todd Glenn Dean to proceed as a poor