Notice of Motion, Affidavit in Support, Proposed Claim, with
Affirmation in Opposition 4
In his proposed claim, claimant alleges that while he was incarcerated at
Oneida Correctional Facility, he was denied any medical care for a period of 30
days following an assault against him by correction officers at the
Additionally, claimant alleges that
he also received inadequate medical treatment for his injuries, and that such
treatment "amounts to a deliberate indifference to [his] serious medical needs."
(See proposed claim, par.7).
In order to determine an application for permission to serve and file a late
claim, the Court must consider, among other relevant factors, the six factors
set forth in § 10(6) of the Court of Claims Act. The factors set forth
therein are: (1) whether the delay in filing the claim was excusable; (2)
whether the State had notice of the essential facts constituting the claim; (3)
whether the State had an opportunity to investigate the circumstances underlying
the claim; (4) whether the claim appears meritorious; (5) whether substantial
prejudice resulted from the failure to timely file and the failure to serve upon
the Attorney General a timely claim or notice of intention to file a claim; and
(6) whether any other remedy is available. The Court is afforded considerable
discretion in determining whether to permit the late filing of a claim (see
Matter of Gavigan v State of New York, 176 AD2d 1117).
With regard to excuse, claimant states in his supporting affidavit (see Item 2)
that he was receiving legal assistance from the Prisoner Assistance Center,
Inc., and that he was advised in May, 2005, that they would not handle his
claim. However, claimant's reliance upon the Prisoner Assistance Center for
pursuing his claim is not justified, since, by claimant's own submissions, there
was no contact between claimant and the Center from August 30, 2004 to May 6,
2005. Claimant has provided no explanation for his failure to pursue any
remedies, with or without the assistance of the Prisoner Assistance Center,
during this time. Additionally, ignorance of the law, including ignorance of
applicable time limits, is not an acceptable excuse for delay (see Matter of
Galvin v State of New York, 176 AD2d 1185, lv denied 79 NY2d 753;
Erca v State of New York, 51 AD2d 611, affd 42 NY2d 854). The
Court therefore finds that claimant has not presented an acceptable excuse for
his failure to timely serve and file a claim.
The factors of notice, opportunity to investigate, and substantial prejudice
will be considered together. In his supporting affidavit, claimant alleges that
the State received actual notice of the essential facts within 90 days of
occurrence, because he filed a grievance with the superintendent of Oneida
Correctional Facility. The mere filing of a grievance, however, does not equate
to the type of notice that would alert the State to a potential lawsuit.
Similarly, the filing of such a grievance, in and of itself, does not provide
the State with a sufficient opportunity to investigate the facts and
circumstances surrounding a potential claim. Notwithstanding this lack of
notice and opportunity to investigate, since this proposed claim is based upon
medical malpractice and/or negligence, and since claimant was an inmate in the
custody and control of the Department of Correctional Services when the
potential claim accrued, the Court believes that sufficient medical records
would exist which would provide the State with an adequate basis on which to
defend such a claim, if permission were to be granted. Accordingly, the Court
finds that even though claimant has not established notice or an opportunity to
investigate, the State would not be substantially prejudiced should it have to
defend this claim.
The next factor, often deemed the most critical, is whether the proposed claim
has the appearance of merit. If claimant cannot establish a meritorious claim,
it would be an exercise in futility to grant a late claim application (Savino
v State of New York, 199 AD2d 254; Prusack v State of New York, 117
AD2d 729). In order to establish a meritorious cause of action, claimant has
the burden to show 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 (Matter of Santana v New York State Thruway
Authority, 92 Misc 2d 1).
It is well settled that an application for permission to file a late claim
sounding in medical malpractice generally requires further support in the form
of an expert's affidavit of merit, since a Court may determine the potential
merit of a proposed claim only through an affidavit from someone who has the
qualifications to allege a deviation from generally accepted medical standards
(Schreck v State of New York, 81 AD2d 882; Jolley v State of New
York, 106 Misc 2d 550).
In this case, claimant has not submitted any such affidavit of merit from a
medical expert, nor has he even submitted any medical records in support of his
claim. Claimant has merely set forth his own allegations and conclusory
statements that he was denied medical care for over 30 days. Without any
supporting medical evidence, the Court finds that claimant has failed to
establish that his claim has the appearance of merit.
Finally, it does not appear that claimant has any other available remedy.
Accordingly, after a review of the papers submitted herein, and after weighing
and considering all of the factors set forth under Court of Claims Act §
10(6), it is the opinion of this Court that claimant should not be allowed to
serve and file his proposed claim.
Accordingly, it is
ORDERED, that Motion No. M-70332 is hereby DENIED.