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 Southport Correctional
Facility (hereinafter "Southport") on August 2, 2003. Claimant alleges that he
fell and hurt his right wrist on said date and was sent to the infirmary where
he was provided an ice pack and ibuprofen. Claimant also alleges during the
next two weeks he repeatedly requested sick call for further examination of his
wrist due to severe pain. Ultimately, a month after the original accident, the
facility relented and conducted an x-ray of claimant's wrist on September 3,
2003. The x-ray revealed that claimant had fractured his wrist in two places.
Claimant served a notice of intention on or about October 14, 2003 on the State
by certified mail, but without return receipt requested. Thereafter, claimant
filed a claim with the Clerk of the Court on August 13, 2004. The State filed a
Verified Answer containing affirmative defenses including that said notice of
intention was improperly served and thus the claim was untimely. (State's
Verified Answer, ¶ 7). In response to said affirmative defense, claimant
has filed the instant motion seeking permission to late file a claim. The court
will treat Claim No. 109725 as the proposed claim for purposes of this
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. Claimant's allegations are stated in terms of negligence and gross
negligence, sounding in medical malpractice. 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 a negligence cause of action is three years,
while the comparable time period for a medical malpractice cause of action is
two and one half years. (CPLR 214 & 214-a). As such, this motion filed on
October 28, 2004 is timely.
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 first factor that should 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 both a potential negligence cause of action, as well as
a medical malpractice cause of action, since it is not entirely clear whether
claimant is relying on one or both of these theories of recovery. To the extent
the proposed claim is premised upon medical malpractice, it is well-settled that
a motion for permission to file a late claim sounding in medical malpractice
generally requires support in the form of an expert's affidavit of merit.
(Schreck v State of New York
, 81 AD2d 882). Such requirement is based
upon the principle that 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. (Jolley v State of New York
106 Misc 2d 550, 551-552). That having been said, however, an exception does
exist in limited circumstances when the appearance of merit can be gleaned from
the submitted medical records. (De Paolo v State of New York
, 99 AD2d
762). Here, claimant has not submitted an expert affidavit, but has submitted
his medical records which corroborate the alleged sequence of events, namely
that no x-ray was taken of his wrist until one month after his accident. In
view of claimant's allegations, together with his medical records, the court
finds that claimant has made sufficient demonstration of the appearance of
merit. (Zapata v State of New York
, Ct Cl, April 20, 2000, Lane, J.,
Claim No. None, Motion No. M-60903 [UID No.
Additionally, to the extent that this proposed claim contains allegations of
negligence, the court also finds that claimant's proposed claim contains the
appearance of merit.
The next factor is whether claimant's delay in filing the claim was excusable.
Claimant alleges that his delay in filing the claim was excusable due to his
misunderstanding about how his notice of intention was to be mailed,
restrictions placed on him in the special housing unit, and his status as a
layperson. Neither ignorance of the law or incarceration are acceptable excuse.
(Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654; Hall
v State of New York, 85 AD2d 835). Nor can the court accept claimant's
confusion regarding his mailing choices. Claimant's disbursement form clearly
requests "certified mail" not "certified mail, return receipt requested."
(Attachment to Claimant's Motion for Permission to File a Late Claim).
Claimant's allegations that he was misled by facility officials are conclusory.
In sum, it was claimant's obligation to comply with the statutory requirements
and the court finds that claimant has failed to present an excusable reason for
his delay in filing and serving this claim.
With respect to the remaining factors of notice of the essential facts,
opportunity to investigate, lack of substantial prejudice, and the lack of any
alternate remedy, the State has conceded these factors favor claimant. As such,
the court finds these four factors weigh in favor of granting claimant's
Accordingly, it is
ORDERED, that Claim No. 109725 is hereby DISMISSED, sua sponte; and it is
ORDERED, that upon reviewing and balancing all of the factors enumerated in CCA
10 (6), the court finds that five of the six factors, including the
all-important factor of merit, weigh in favor of granting claimant's motion for
permission to file a late claim. As such, for the reasons stated above, it is
ORDERED that the claimant's motion for permission to file a late claim, Motion
No. M-69291, is GRANTED. Claimant shall file a claim with the Clerk of the
Court and serve a copy of the claim upon the attorney general within sixty (60)
days from the date of filing of this Decision and Order with the Clerk of this
Court. The service and filing of the claim shall be in conformity with all
applicable statutes and rules of the Court with particular reference to CCA 10,
11 and 11-a.