New York State Court of Claims

New York State Court of Claims

WILKINS v. THE STATE OF NEW YORK, #2005-009-23, Claim No. NONE, Motion No. M-69526


Claimant's application seeking permission to serve and file a late claim was denied, with the Court finding that claimant had failed to establish a meritorious claim due to his failure to submit an expert affidavit in his medical malpractice claim.

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:
Attorney General
BY: Patricia M. Bordonaro, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
April 18, 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, with Exhibits (including proposed claim as Exhibit C) 1,2

Affirmation in Opposition, with Exhibits 3

Memorandum of Law in Opposition 4

In his proposed claim, claimant seeks damages for personal injuries based upon allegations of medical malpractice and/or negligence stemming from surgery performed in July, 2003 at the State University of New York Upstate Medical Center (SUNY Upstate), while claimant was an inmate at Oneida Correctional Facility. Specifically, on July 3, 2003 claimant underwent surgery to remove a plate and screws from his left ankle. Claimant alleges that the surgeon who performed this surgery either left a foreign object (bone fragment) in his ankle, or failed to properly remove it during the surgery. He further alleges that medical personnel at Oneida Correctional Facility failed to provide appropriate follow-up care.

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 both his supporting affidavit and claim that he had no knowledge of the foreign object until he viewed an x-ray report taken after the surgery in May, 2004. However, even if this Court were to accept claimant's argument that he was unaware of any potential cause of action until May, 2004, claimant did not serve and file a claim, or serve a notice of intention to file a claim, within 90 days of this discovery, as required by Court of Claims Act § 10(3), a fact which claimant has not addressed in this application. The Court therefore finds that claimant has not provided an acceptable excuse for his failure to timely serve and file his claim.

The factors of notice, opportunity to investigate, and substantial prejudice will be considered together. Defendant argues that although the State certainly had knowledge of claimant's surgery, as well as subsequent grievances brought by claimant relating to the surgery and his continued ankle problems, the State never had any notice of a potential lawsuit until this application was brought, approximately one and one-half years after the surgery. Based on these undisputed facts, the Court finds that the State did not have any actual notice of this potential claim, nor any opportunity to investigate the circumstances surrounding this claim, until this application was brought. The Court, however, also finds that due to the existence of claimant's medical records, which presumably describe not only the surgery performed, but also details as to claimant's post-operative care and treatment at the facility, the defendant would not be unduly 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).

Furthermore, it is well established 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 (Schreck v State of New York, 81 AD2d 882). This requirement is based upon the principle that in order for the Court to determine the potential merit of a proposed claim sounding in medical malpractice, an affidavit is required from someone who has the appropriate qualifications to allege a deviation from generally accepted medical standards (Jolley v State of New York, 106 Misc 2d 550). In limited circumstances, the Court notes that an appearance of merit can be established from submitted medical records (De Paolo v State of New York, 99 AD2d 762).

In this particular situation, claimant has not submitted any expert affidavit, but has submitted the x-ray report dated May 20, 2004 (see Exhibit A to Items 1,2). This report makes reference to an "[o]ld healed fracture deformity of the distal fibula" and identifies "well corticated fracture fragments". In order to establish an appearance of merit in a late claim application for medical malpractice, however, the expert medical evidence must demonstrate that "the diagnosis and treatment rendered to claimant by state personnel departed from accepted medical practices and standards" (Matter of Perez v State of New York, 293 AD2d 918, 919). In this case, the x-ray report submitted by claimant is insufficient to establish such an appearance of merit. Specifically, there is no indication in the x-ray report that the bone fragments identified by the x-ray were caused by the surgery in July, 2003 to remove the plate and screws, that such bone fragments should have been removed during this surgery, or that such fragments are causing the pain and discomfort now alleged by claimant.

In other words, the x-ray report, without any accompanying expert medical opinion or evidence, is insufficient to support claimant's allegations of malpractice occurring in his surgery, or that he was improperly and ineffectually treated by State medical personnel following that surgery. In this matter, therefore, the Court finds that expert medical evidence is required in order to demonstrate the appearance of merit.

Finally, in his motion papers claimant has not addressed the factor as to whether he has any other available remedies. It appears that he may have a potential cause of action against the physician who performed the surgery.

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-69526 is hereby DENIED.

April 18, 2005
Syracuse, New York
Judge of the Court of Claims