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
, Ct Cl, December 22, 2003, Lebous, J., Claim No. 108347, Motion No.
M-67697 [UID No. 2003-019-577]).
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
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
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:
(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).
, 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
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
CCA 10 (6)
Claimant also seeks alternate relief by way of a motion for permission to late
file pursuant to CCA 10 (6).
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 ). 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
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.
. 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
(Schreck v State of New
, 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
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
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.
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
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.