New York State Court of Claims

New York State Court of Claims

LUCIANO v. THE STATE OF NEW YORK, #2005-015-008, Claim No. NONE, Motion No. M-69249


Court denied late claim relief where movant failed to support application with affidavit of medical expert tending to support his claim of medical malpractice.

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:
Roberto Luciano, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael C. Rizzo, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
February 7, 2005
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movant's application for late claim relief pursuant to Court of Claims Act § 10 (6) is denied. Although difficult to accurately decipher, the Court interprets the proposed claim as alleging a failure by DOCS medical personnel to properly treat movant for hepatitis C for a period of twenty-one months following his initial request for treatment. Movant asserts negligence on the part of medical staff at both Ulster Correctional Facility and Mt. McGregor Correctional Facility. Although paragraph "5" of the motion for permission to file a late claim alleges a notice of intention was served on August 10, 2004[1] the movant has failed to provide a copy of the notice of intention or an affidavit of service. It cannot therefore be determined whether a notice was served or, if served, whether the notice of intention was related to any or all of the matters sought to be addressed in the proposed claim. Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy."

The first issue for determination upon a late claim motion is whether the application is timely. Movant alleges that the malpractice complained of began as early as July 22, 2002 and continued periodically until May 13, 2004 when he began a regimen of prescription drug treatment for hepatitis C. The Court will assume for purposes of this determination that the application would be timely as to any cause of action for medical malpractice accruing less than two years and six months prior to the filing date of the application pursuant to CPLR § 214-a.

Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965), and the statutory factors are not exhaustive or one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254).

The excuse advanced for the failure to timely serve and file a claim is movant's ignorance of the Court of Claims Act requirements. Ignorance of the law is not an acceptable excuse (Griffin v John Jay College, 266 AD2d 16). Nor does the Court find that movant has established that the effects of prescription medication prevented him from accessing a law library (Klinger v State of New York, 213 AD2d 378; Cabral v State of New York, 149 AD2d 453). Conclusory allegations that one is incarcerated and without access to legal references do not constitute a reasonable explanation for the failure to serve a claim in a timely manner (Sandlin, Matter of, v State of New York, 294 AD2d 723, 724; Thomas, Matter of, v State of New York, 272 AD2d 650). Accordingly, this factor weighs against granting the motion.

The intertwined issues of notice, opportunity to investigate and prejudice will be considered together. Movant asserts that he informed various medical personnel at both the Ulster and Mt. McGregor facilities that he was hepatitis C positive and repeatedly requested treatment. Movant's allegations of generally continuous interaction with facility medical staffs and the defendant's failure to address the issues of notice, opportunity to investigate and prejudice lead the Court to find that these factors weigh in favor of granting the motion.

Finally, as to the merit of the proposed claim, it is well established that a motion for late claim relief involving a claim for medical malpractice must be accompanied by expert medical evidence demonstrating that "the diagnosis and treatment rendered to claimant by state personnel departed from accepted medical practices and standards" (Perez, Matter of, v State of New York, 293 AD2d 918, 919; see also, Gonzalez, Matter of, v State of New York, 299 AD2d 675; Fiore v Galang, 64 NY2d 999; Duffy, Matter of, v State of New York, 264 AD2d 911). Movant offered no such evidence tending to prove the merit of the proposed claim which asserts either a denial of timely treatment or inappropriate medical treatment of his illness. This important factor weighs against granting the motion.

As to the final factor, it cannot be determined on the basis of movant's submission whether he has any other remedy available.

Consideration of all of the above factors persuades the Court that the application for late claim relief should be and hereby is denied.

February 7, 2005
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion sworn to September 16, 2004 with exhibits;
  2. Affidavit of Michael C. Rizzo sworn to October 18, 2004;
  3. Affidavit of Michael C. Rizzo sworn to August 26, 2004 with exhibit (filed with reference to a prior non-filed motion.

[1]It appears that the notice of intention referred to was actually a prior motion to file a late claim which movant apparently served on the Attorney General but failed to file with the Court despite allegations in an attached affidavit of service (see Rizzo affidavit in opposition dated August 26, 2004.