New York State Court of Claims

New York State Court of Claims

DANIELS v. THE STATE OF NEW YORK, #2004-031-102, , Motion Nos. M-68594, M-67929


Court of Claims has no jurisdiction over claim. Alleged negligence not committed by agent of the State. Additionally, Claimant's failure to include expert affidavit demonstrating merit precludes relief on his motion for permission to file a late claim. Motion for change of venue and request to withdraw as counsel are denied as moot

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):
M-68594, M-67929
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
New York State Attorney General
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 11, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 9, were read on motions by Claimant for permission to file a late claim, and for a change of venue, and on an application of Claimant's counsel to withdraw as attorney of record in this matter:
1. Claimant's Notice of Motion (M-67929), filed January 20, 2004;
2. Affidavit of Daryl Daniels, sworn to December 10, 2003, with attached exhibits;
3. Claimant's Notice of Motion (not given a separate motion number), filed March 10, 2004;
4. Affirmation of Eric M. Sears, Esq., dated March 2, 2004, with attached exhibits;
5. Order To Show Cause (M-68594), filed June 7, 2004;
6. Affirmation of Eric M. Sears, Esq., dated April 21, 2004, with attached exhibits;
7. May 27, 2004 correspondence of Daryl Daniels;
8. Affirmation of James L. Gelormini, dated July 9, 2004;
9. Affidavit of James Conway, sworn to July 1, 2004. BACKGROUND

On January 20, 2004, Claimant filed a motion for permission to file a late claim. In his proposed claim, Mr. Daniels purports to assert causes of action for medical malpractice and negligence. Specifically, Mr. Daniels alleges that, on June 12, 2002, while undergoing surgery on his left foot, the surgeon failed to properly perform the operation, apparently failing to remove a portion of gangrenous cartilage. This failure led to the eventual amputation of his left leg below the knee. According to the claim, the operation was performed at Warsaw County Hospital by a surgeon identified as Dr. Levey. Claimant alleges that Dr. Levey is an employee of Defendant.

Then, on March 10, 2004, after Claimant's motion was filed, Eric M. Sears, Esq., filed another motion on Claimant's behalf (which was included in M-67929 and not calendared as a separate motion) requesting an adjournment of the return date of M-67929 and a change of venue. The adjournment was granted by the Court by mail, as a formal motion is not necessary to secure such relief.

Thereafter, on May 17, 2004, Mr. Sears initiated another proceeding, by order to show cause, in which he seeks to withdraw as counsel for Claimant.
I will address the motion for permission to file a late claim first. Subdivision 6 of § 10 of the Court of Claims Act ("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 six (merit). The other five 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 argues that, because the operation was performed at a county facility, Warsaw County Hospital, and the surgeon who performed the operation was not, contrary to Claimant's assertion, a State employee, this Court lacks jurisdiction over the claim. Defendant also argues that the motion lacks merit because Claimant has failed to offer an affidavit of an expert demonstrating how the medical care Claimant received 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.

With regard to the jurisdictional issue, I find that Defendant has adequately demonstrated that the facility in which the operation was performed was not a State facility, and the surgeon who performed the operation was not a State employee. Defendant correctly observes that no liability can attach to the Defendant for actions occurring at an outside, private, medical facility or by an independent physician (Rivers v State of New York, 159 AD2d 788, appeal denied 76 NY2d 701).

Claimant has alleged both medical malpractice and negligence. A cause of action sounding in medical negligence, in essence, alleges negligent omissions or commissions by State caregivers 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 & Dispensary, 284 NY 176), leaving a postoperative patient unattended in a bathroom (Coursen v New York Hospital-Cornell Med. Center, 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 the operation on Claimant's left foot was performed in a negligent manner.

Claimant has not submitted any evidence that the surgeon in question deviated from the appropriate standard of care or otherwise failed to utilize his 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 medical 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 De Paolo 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, Corbett, Jr., J., [Claim No. 99581], 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.

Accordingly, Claimant's motion for a change of venue and Claimant's counsel's application to withdraw as attorney of record for Claimant must be denied as moot.

For the reasons set forth above, it is hereby

ORDERED, that Claimant's motion for permission to file a late claim is denied. Claimant's motion for a change of venue and the application of Eric M. Sears, Esq. to withdraw as counsel for Claimant are denied as moot.

August 11, 2004
Rochester, New York

Judge of the Court of Claims