Claimant, an inmate appearing pro se, moves for permission to file a late claim
pursuant to Court of Claims Act (hereinafter "CCA") 10 (6). The State of New
York (hereinafter "State") opposes the motion.
This claim arose during claimant's incarceration at Elmira Correctional
Facility (hereinafter "Elmira") on April 28, 2003. Claimant alleges that he was
exiting his cell and had bent down to tie his shoe and fix his pant cuff when
his electric cell door was closed injuring his hand. (Proposed Claim, ¶
3.1). Claimant also alleges medical malpractice by Elmira medical personnel in
relation to their subsequent treatment of his hand injury.
As a threshold matter, the court must first determine whether it has
jurisdiction to review and determine this motion relative to the proposed causes
of action. The court has jurisdiction over a motion to late file when it is
filed within the comparable time period for bringing similar actions against a
citizen of the state. (CCA 10 ). Here, the comparable time period for the
proposed negligence cause of action is three years, while the comparable time
period for the medical malpractice cause of action is two and one half years.
(CPLR 214 & 214-a). As such, this motion filed on February 4, 2004 is
timely with respect to both proposed causes of action.
The factors that the court must consider in determining a properly framed CCA
10 (6) motion are whether:
6. the claimant has any other available remedy.
The first factor to be addressed is whether the proposed claim appears
meritorious since it has been characterized as the most decisive component in
determining a motion under CCA 10 (6) and 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). The court will address the
issue of merit separately relative to the proposed negligence and medical
malpractice causes of action.
With respect to the proposed negligence cause of action, claimant does not
allege that the electric gate was defective in any manner. Rather, claimant
asserts that the correction officer left the gate console after starting to
close the gate even though he saw claimant bent down in the doorway and without
making sure that claimant had cleared away from the gate. (Proposed Claim,
¶ 3.2). In opposition, the State questions whether this incident ever
occurred in the first instance since claimant did not submit any corroborating
evidence or documents in support of his motion. Moreover, the State avers
through its attorney that no Unusual Incident Report or Report of Inmate Injury
could be located relative to this incident. Although the burden on claimant to
establish that his claim appears to be meritorious is a relatively low
threshold, the court is concerned with the total lack of any supporting
documents in light of the State's inability to locate any such documents.
Generally, facts alleged in a late filing motion are deemed true when neither
denied or contradicted in opposing affidavits. (Sessa v State of New
York, 88 Misc 2d 454, 458, affd 63 AD2d 334, affd 47 NY2d
976). However, here the State has noted, albeit by way of an attorney's
affirmation, an inability to locate any document relative to this incident. As
such, the court finds that claimant has failed to establish that his claim
appears meritorious, but will deny the motion without prejudice to another
application on proper papers including, for instance, the Unusual Incident
Report or Report of Inmate Injury.
With respect to the proposed cause of action based upon medical malpractice,
claimant has made general statements regarding the inadequacy of the medical
treatment to his hand. 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. (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]). Nor has claimant established that
the exception to this general rule is applicable on these facts or has he
submitted any medical records whatsoever in support of his position.
(Kambat v St. Francis Hosp.
, 89 NY2d 489). Here, claimant has
pled a medical malpractice claim based upon the improper treatment of his hand
injury which 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 hand was inadequate. (Mattter of E.K. v State of New York
, 235 AD2d
540, lv denied
89 NY2d 815; Dunwoody v State of New York
, Ct Cl,
June 26, 2000, Corbett, Jr., J., Claim No. 99581, Motion No. M-60043 [UID No.
In sum, based on this record,
the court finds that claimant has failed to establish that his claim relative to
the proposed medical malpractice appears meritorious.
The remaining factors will be discussed in the context of both proposed causes
of action. With respect to whether the delay in filing the claim was excusable,
claimant's proffered excuse is that he was not aware of the requirements of the
CCA due to his layman status. Ignorance of the law is not an acceptable excuse.
(Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654). Nor
is incarceration a valid excuse. (Hall v State of New York, 85 AD2d
835). Accordingly, claimant has failed to present an excusable reason for his
delay in filing and serving this claim.
Notice of the essential facts, opportunity to investigate and substantial
prejudice comprise the next three factors. With respect to notice, as noted
above the State argues that it has been unable to locate the Unusual Incident
Report referred to in claimant's papers. (Affirmation of James E. Shoemaker,
AAG, ¶ 6). The court finds this factor weighs against claimant. With
respect to the opportunity to investigate and substantial prejudice, the State
argues that these two factors weigh in its favor because the dangerous condition
at issue was transitory in nature. The court disagrees. Arguably, the
prejudice to the State at this time is the equivalent as if claimant had waited
until the last day of the 90-day statutory time period after accrual to comply
with CCA 10. In other words, the so-called transitory condition, e.g., the
opening and closing of the gate, would have dissipated just as much by the 90th
day after the accident as of the date of the filing of this motion. Moreover,
the State's concern that witnesses are no longer available is speculative. As
such, the court finds that these two factors weigh in claimant's favor.
The last factor is the availability of an alternate remedy. The State concedes
that there is no alternate remedy available to claimant and, as such, this
factor favors claimant.
Accordingly, upon reviewing and balancing all of the factors enumerated in CCA
10 (6), the court finds that three of the six factors, including the
all-important factor of merit, weigh against claimant's motion for permission to
file a late claim. As such, claimant's motion will be denied without prejudice
to another application on proper papers.
Accordingly, in view of the foregoing, IT IS ORDERED that claimant's motion for
permission to late file, Motion No. M-67993, is DENIED without prejudice.