New York State Court of Claims

New York State Court of Claims

NELSON v. THE STATE OF NEW YORK, #2005-009-059, Claim No. NONE, Motion No. M-70332


Claimant's motion seeking permission to serve and file a late claim was denied, due primarily to claimant's failure to submit expert medical evidence.

Case Information

THOMAS NELSON The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General
BY: Thomas M. Trace, Esq.,
Senior AttorneyOf Counsel.
Third-party defendant's attorney:

Signature date:
November 28, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this motion seeking permission to serve and file a late claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit in Support, Proposed Claim, with Attachments 1,2,3

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 facility.[1] 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.

November 28, 2005
Syracuse, New York

Judge of the Court of Claims

[1] The Court notes that claimant has not asserted a cause of action for this alleged assault. In any event, any application for late claim relief based upon such an assault would be time-barred under Court of Claims Act 10(6), since the application was not made within the applicable limitations period for intentional torts, which is one year from the date of accrual (CPLR 215[3]).