New York State Court of Claims

New York State Court of Claims

BERRY v. THE STATE OF NEW YORK, #2004-031-013, Claim No. 106825, Motion No. M-67197


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:
Defendant's attorney:
New York State Attorney General
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 10, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 4, were read on motion by Claimant:
1. Claimant's Notice of Motion, filed August 4, 2003;
2. Claimant's Affidavits, both sworn to July 17, 2003, with attached exhibits;
3. Affirmation of Thomas G. Ramsay, Esq., dated September 16, 2003, with attached exhibits;
4. Filed documents: Claim. Claimant filed his initial claim in this matter on October 23, 2002, alleging dental malpractice and negligence relating to treatment he received at Wyoming Correctional Facility ("Wyoming") on July 23, 2002. Claimant brings this motion purportedly seeking permission to file a late claim. Attached to this motion are documents which purport to be a separate and distinct motion for permission to amend Claimant's already outstanding claim for dental malpractice/negligence (claim no. 106825). Both the motion for permission to file a late claim and the motion for permission to amend his claim deal with the same underlying events set forth in claim number 106825. Defendant opposes both applications.
I will address the motion for permission to file a late claim first. Subdivision 6 of § 10 of the Court of Claims Act ("the CCA") enumerates six factors to be weighed in connection with a late claim motion: (1) whether the delay was excusable; (2) whether Claimant has any other remedy; (3) whether Defendant had notice of the essential facts constituting the claim; (4) whether Defendant had an opportunity to investigate; (5) whether Defendant would be substantially prejudiced; and (6) whether the claim appears to be meritorious. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court in its discretion, balances these factors in making its determination (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

In its opposition to this motion, Defendant disputes only factor 6 ( merit). The other 5 factors are, therefore, presumed to weigh in the Claimant's favor (see Calzada v State of New York, 121 AD2d 988; Cole v State of New York, 64 AD2d 1023, 1024).

However, of the six enumerated factors in CCA § 10(6), it is the appearance of merit that is most significant, as it would be pointless to grant permission to file late if the proposed claim did not have at least the appearance of merit (see e.g. Prusack v State of New York, 117 AD2d 729). On this point, Defendant opposes the application, pointing out that Claimant has failed to offer an affidavit of an expert demonstrating how Defendant's care of Claimant deviated from community standards. In fact, Claimant offers nothing besides his own lay opinion to establish the merit to his contentions that he was improperly treated.

A cause of action sounding in medical neglect, in essence, alleges negligent omissions or commissions by State care givers which can be readily determined without the necessity of expert testimony. However, this theory is limited to "those cases where the alleged negligent act may be readily determined by the trier of the facts based on common knowledge" (Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, 256). Such cases have involved scalding a patient with a hot water bottle (Phillips v Buffalo General Hospital, 239 NY 188), leaving an electric light bulb under the sheets (Dillon v Rockaway Beach Hospital, 284 NY 176), leaving a postoperative patient unattended in a bathroom (Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, 256, supra), and other similar circumstances. I find that no such easily identified cause of action exists here and that an expert opinion is necessary to demonstrate how Claimant's care was improper.

Claimant has not submitted any evidence that a dentist or other medical personnel at Wyoming deviated from the appropriate standard of care or otherwise failed to utilize their professional judgment. Because his proposed claim involves the appropriate level of patient care, and the exercise of professional judgment, I cannot accept Claimant's own statement that the level of care afforded him was inadequate as the basis for a cause of action sounding in dental malpractice (see Twitchell v MacKay, 78 AD2d 125; Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804; see also Morgan v State of New York, 40 AD2d 891 [expert medical testimony required to establish malpractice involving patient care] ). On this record, I find no basis to excuse the lack of an expert's affidavit (see DePaolo v State of New York, 99 AD2d 762 [moving papers included medical records and product literature which indicated medication contraindicated] ), and the failure to provide one is a fatal flaw in Claimant's ability to establish his claim as meritorious. (see Jolley v State of New York, 106 Misc 2d 550, 551-552; Dunwoody v State of New York, Ct Cl, June 26, 2000, [Claim No. 99581], Corbett, J., UID #2000-005-518). As a result, Claimant has failed to show that his proposed claim appears meritorious.

Upon reviewing and balancing all of the factors enumerated in CCA § 10(6), the Court finds that they weigh in favor of Defendant. Claimant's motion for permission to file a late claim is denied.
Defendant also opposes Claimant's application for permission to amend his claim, pointing out that Claimant has offered no "additional or subsequent transactions or occurrences" which would permit amendment of the claim pursuant to CPLR 3025(b).

Leave to amend is to be "freely given" upon such terms as may be just (CPLR 3025[b]). However, in this instance leave to amend is not appropriate. Claimant's proposed amendment involves causes of action which allegedly accrued on September 27, 2001, as opposed to the discrete events alleged in the original claim which occurred on July 23, 2002 (see Nieblas v State of New York, Ct.Cl, June 12, 2003 [Claim No. 103210, Motion No. M-66550], Sise, J., UID #2003-028-551). I find that the original claim did not give Defendant notice of the allegations contained in the proposed amended claim which occurred approximately one year prior to the events detailed in the original claim. For this reason, the benefits of CPLR 203(f) (the relation back doctrine) do not avail Claimant (see Thorne v State of New York, Ct Cl, May 16, 2000 [Claim No. 89580, Motion No. M-60185], O'Rourke, J., UID #2000-017-003).

Importantly, I note that the new causes of action, if asserted in a newly filed claim would be untimely filed and, would require a motion, as addressed above, for permission to file a late claim. Permitting Claimant's proposed amended claim to be filed would improperly circumvent the provisions of Court of Claims Act § 10 (Nieblas v State of New York, supra).

For the reasons set forth above, it is hereby,

ORDERED, that Claimant's motions for permission to file a late claim and for permission to amend his claim are both denied.

February 10, 2004
Rochester, New York

Judge of the Court of Claims