New York State Court of Claims

New York State Court of Claims

FRANCIS v. THE STATE OF NEW YORK, #2004-019-522, Claim No. 108347, Motion No. M-67944


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:
SAASTO & HIRSCH, ESQS.BY: Jeffrey Hirsch, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
February 25, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for an order: (1) vacating the prior Decision & Order of this court dated December 22, 2003 which dismissed this claim; (2) granting reargument and, upon such reargument, denying the defendant's motion to dismiss; or, (3) for permission to file a late claim pursuant to Court of Claims Act ("CCA") 10 (6). The State of New York (hereinafter "State") opposes the motion.

This claim alleges that claimant lost total vision in his left eye due to the State's medical malpractice in failing to provide proper treatment. The claim further alleges that claimant began complaining about his eye condition in 2001 continuing through 2003. By way of a prior Decision & Order dated December 22, 2003, this court dismissed this claim as untimely. (Francis v State of New York, Ct Cl, December 22, 2003, Lebous, J., Claim No. 108347, Motion No. M-67697 [UID No. 2003-019-577]).[1] Some background is in order regarding said prior Decision & Order.

The State filed a motion for dismissal on October 15, 2003 which was designated as Motion No. M-67697. On October 27, 2003, claimant submitted opposing papers to the State's motion specifically listing himself as a pro se litigant. Moreover, claimant did not indicate he had formally hired an attorney and did not request an adjournment to allow time for counsel to submit opposing papers on his behalf. The court, however, noted that the law firm of Saasto & Hirsch had paid the filing fee for this claim, but that no formal notice of appearance was on file. (Francis, Ct Cl, December 22, 2003, Lebous, J., Claim No. 108347, Motion No. M-67697, n 1). Additionally, the assistant attorney general represented to chambers that Saasto & Hirsch was aware of the motion and that he informed them that any request for an adjournment had to be directed to chambers. Chambers never received a request for an adjournment from Saasto & Hirsch. Also, the Clerk of the Court had advised Saasto & Hirsch in writing of the need for the filing of a formal notice of appearance.[2] Taking all of these factors into consideration, particularly the absence of a formal notice of appearance, the court determined that claimant was proceeding pro se and accepted claimant's opposing papers submitted as such. The court then went on to address the merits of the State's motion and found the claim was untimely based upon claimant's failure to comply with CCA 10 and 11 and dismissed the same.

Now, by way of this motion, claimant's counsel argues for either reargument under CPLR 2221 or a motion to vacate pursuant to CPLR 5015 on the grounds that he was not afforded an opportunity to submit opposing papers to the State's dismissal motion.[3] More specifically, claimant's counsel argues that "[c]laimant should have an opportunity to properly argue his claim with an attorney and have the case determined on the merits." (Affirmation of Jeffrey Hirsch, p 2; emphasis added). The court notes in the first instance that claimant did oppose the State's motion on the merits by submitting opposing papers, albeit as a pro se litigant, and did not default in opposing the State's dismissal motion. That having been said, however, the court will give claimant every benefit by granting his motion for reargument - thus permitting claimant's counsel to make any additional factual and legal arguments he believes are warranted and addressing, again, the State's dismissal motion on the merits in light of counsel's arguments.

Having been provided this second chance - the substance of claimant's counsel's affirmation in opposition to the State's dismissal motion is as follows:
Attached hereto is the affidavit of the claimant setting forth the grounds why his claim should be deemed timely served. There were repeated complaints to State doctors. There was a continuing treatment by State doctors. The claim was clearly filed within the Statute of Limitations for malpractice and therefore should be deemed timely filed. The State doctors clearly neglected claimant and did not give him proper medical treatment, and this clearly led to his losing sight in his eye.

(Affirmation of Jeffrey Hirsch, p 2).

Upon reargument, claimant argues that he is entitled to application of the continuous treatment doctrine to some unspecified date in 2003. The continuous treatment doctrine provides that a limitations period will not begin to run until the end of the course of treatment. (McDermott v Torre, 56 NY2d 399, 405). However, a claimant who seeks to use the doctrine to save an otherwise time-barred action bears the burden of proving the applicability of the doctrine. (Cox v Kingsboro Med. Group, 88 NY2d 904; White v Murphy, 277 AD2d 852, 853-854). Furthermore, the application of this doctrine is only proper when an individual is undergoing treatment. To the contrary, claimant's allegations here appear to assert a lack of medical treatment and a lack of medical treatment does not permit the application of the continuous treatment doctrine. (Young v New York City Health & Hosps. Corp., 91 NY2d 291, 296-297; Nykorchuck v Henriques, 78 NY2d 255, 258-259). In any event, claimant has failed to establish what, if any, treatments and which corresponding dates, warrant application of the doctrine. As such, the court finds the continuous treatment doctrine inapplicable on these facts. (Young, 91 NY2d at 296-297; Nykorchuck, 78 NY2d at 258-259).

As such, the court finds that this claim accrued, at the earliest, in August 2001. Accordingly, pursuant to CCA 10 (3), the claim had to be filed and served within two years thereafter. Here, the claim was served on September 8, 2003 and filed on October 1, 2003, both of which are beyond the allowable statutory period and is untimely. For purposes of argument, the court will revisit the State's concession in its original moving papers, that this claim accrued, at the latest, on April 24, 2003, the date on which outside providers determined that claimant had lost all vision in his left eye. (Affirmation of James E. Shoemaker, AAG dated October 10, 2003, ¶ 8). As stated in the prior Decision & Order, if this claim accrued as late as April 24, 2003, the claim served on September 8, 2003 and filed on October 1, 2003 was also untimely since it was served and filed beyond the 90-day period set forth in CCA 10 (3). (Francis, Ct Cl, December 22, 2003, Lebous, J., Claim No. 108347, Motion No. M-67697 [UID No. 2003-019-577]). Consequently, this court finds that this claim is untimely based upon claimant's failure to comply with CCA 10 and 11.[4]

In sum, claimant's motion for reargument, Motion No. M-67944, is granted and, upon such reargument, the State's motion for dismissal, Motion No. M-67697 is granted. The court will now turn to claimant's alternate request for relief, namely a motion seeking permission to file a late claim pursuant to CCA 10 (6).

CCA 10 (6)

Claimant also seeks alternate relief by way of a motion for permission to late file pursuant to CCA 10 (6).[5] As a threshold consideration this court must determine whether it has the jurisdiction to review and determine a motion seeking permission to file a late claim which must be filed within the statute of limitations period attributable to the underlying cause(s) of action. (CCA 10 [6]). A claim based upon medical malpractice must be commenced within two-and-one-half years after the action accrued. (CPLR 214-a). Whether measured from the earliest possible date of accrual, August 2001, or the latest, April 24, 2003, this motion is timely since it was filed on January 22, 2004 which is within two-and-one-half years from either of those dates.

The factors that the court must consider in determining a properly framed CCA 10 (6) motion are whether:

1. the delay in filing the claim was excusable,

2. the State had notice of the essential facts constituting the claim,

3. the State had an opportunity to investigate the circumstances underlying the claim,

4. the claim appears to be meritorious,

5. 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

6. the claimant has any other available remedy.

The issue of whether the proposed claim appears meritorious has been characterized as the most decisive component in determining a motion under CCA 10 (6), since it would be futile to permit a meritless claim to proceed. (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10). In order to establish a meritorious claim, claimant must establish that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid claim exists. (Id. at 11). Moreover, it is well-settled that an application for permission to file a late claim motion sounding in medical malpractice generally requires further support in the form of an expert's affidavit of merit, for it is only through an affidavit from someone who has the qualifications to allege a deviation from generally accepted medical standards setting forth facts which establish said deviation that the court may determine the potential merit of the proposed claim.[6] (Schreck v State of New York, 81 AD2d 882; Jolley v State of New York, 106 Misc 2d 550, 551-552 [while allegations are normally deemed true for the purposes of a late claim, this rule benefits only one who has the requisite knowledge or expertise]).

Here, claimant has attempted to plead a medical malpractice claim since he has specifically raised the issue of the lack of treatment of his eye which obviously involves matters beyond common knowledge that will necessitate the input of an expert. (Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804). However, claimant has not submitted an expert affidavit, but rather only his own conclusory statements that the treatment of his eye was inadequate and that the vision in his left eye could have been saved with proper treatment.[7] Quite simply, claimant's own statement that the level of care afforded him was inadequate is insufficient to support a medical malpractice cause of action. (Dunwoody v State of New York, Ct Cl, June 26, 2000, Corbett, Jr., J., Claim No. 99581, Motion No. M-60043 [UID No. 2000-005-518]). In sum, the court finds that claimant has failed to establish that his claim appears meritorious.

Notice of the essential facts, opportunity to investigate and lack of substantial prejudice comprise the next three factors and may be considered together since they involve analogous considerations. The State concedes the factors of notice of the essential facts and opportunity to investigate. Based upon those concessions, the court finds that claimant's failure to comply with CCA 10 did not result in substantial prejudice to the State. As such, these three factors favor claimant.

The next factor is whether the delay in filing the claim was excusable. Claimant does not articulate a reason for his delay. The court views this as an excuse rooted in an ignorance of the law argument. However, ignorance of the law is not an acceptable excuse. (Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654). This factor weighs against claimant's motion.

The final factor is the availability of an alternate remedy. Claimant has no other available remedy, while the State alludes to a possible alternate remedy due to the involvement of outside medical providers. The court will provide claimant the benefit of the doubt on this factor and find no alternative remedy and, as such, finds this factor weighs in claimant's favor.

Upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the court finds that two of the six factors, including the all-important factor of merit, weigh against claimant's motion.

Accordingly, in view of the foregoing, it is ORDERED that claimant's motion for reargument, Motion No. M-67944, is GRANTED and upon such reargument, the State's motion for dismissal, Motion No. M-67697 is GRANTED; and

IT IS FURTHER ORDERED, that claimant's motion for permission to permit the late filing and service of a claim, Motion No. M-67944, is DENIED.

February 25, 2004
Binghamton, New York

Judge of the Court of Claims

The Court has considered the following papers in connection with this motion:
  1. DECISION AND ORDER, Lebous, J., Claim No. 108347, Motion No. M-67697, dated December 22, 2003, and filed January 2, 2004.
  2. Notice of Motion No. M-67944, dated January 21, 2004, and filed January 22, 2004.
  3. Affirmation of Jeffrey Hirsch, Esq., in support of motion, dated January 21, 2004, with attached exhibits.
  4. Affidavit of Patrick Francis, in support of motion, sworn to December 19, 2003.
  5. Affirmation of James E. Shoemaker, AAG, in opposition to motion, dated February 9, 2004, and filed February 11, 2004, with attached exhibits.

[1]Unreported decisions from the Court of Claims are available via the Internet at

[2]A formal notice of appearance was not filed until January 22, 2004 - after the dismissal motion had been decided.
[3]Claimant's current motion does not fit neatly into either category. A motion for reargument pursuant to CPLR 2221 (d) is premised upon the theory that the court has overlooked or misapprehended significant facts or misapplied the law in its original decision, but does not include the introduction of any new facts. (Matter of Town of Poestenkill v New York State Dept. of Envtl. Conservation, 229 AD2d 650, 651). An argument based on excusable default under CPLR 5015 (a) requires a reasonable excuse and a meritorious cause of action. (Cippitelli v Town of Niskayuna, 277 AD2d 540). Here, however, no default occurred. In any event, the disposition of this motion is not contingent on a particular designation, so the court will proceed, as did the parties, under the assumption that this is a motion for reargument.
[4]Parenthetically, the court notes that claimant also argues that he served a notice of intention dated December 4, 2002. The State denies ever receiving the notice of intention. Assuming, arguendo, the court were to accept claimant's argument that he served a notice of intention on or about December 4, 2002, service of that paper would have cut off his ability to rely on the continuous treatment doctrine. More specifically, the Third Department has stated that initiation of the legal process "[c]learly severed any continuing relationship of trust in the physician-patient relationship and ended any 'continuous treatment tolling' at that point [citation omitted]", namely when he served his notice of intention upon defendant. (Toxey v State of New York, 279 AD2d 927, 928-929, lv denied 96 NY2d 711). As such, even if claimant had come forward with proof of service of a notice of intention - which he has not - such proof would have meant claimant had ninety days thereafter to file and serve a claim - which he did not, thereby leading to the same conclusion that this claim was untimely.
[5]The court will deem the pre-existing, albeit now dismissed, claim as the proposed claim. (Syndicate Bldg. Corp. v City Univ. of N. Y., 151 Misc 2d 492, 495 n 2).
[6]Nor has claimant established that the exception to this general rule is applicable on these facts. (Kambat v St. Francis Hosp., 89 NY2d 489).
[7]Counsel's affirmation states that at one point he was "[a]ttempting to obtain medical corroboration of the claim...." (Affirmation of Jeffrey Hirsch, p 2). It is unclear whether such corroboration was ever obtained and, if so, why it was not attached to the moving papers.