Movant's application for late claim relief is denied.
The proposed claim submitted on the motion asserts that in January, 2005 the
movant began to complain of pain in the area of his neck and upper back to
medical personnel at Great Meadow Correctional Facility in Comstock, New York.
Movant was seen by an individual named Ted Nesmith, whom he believed to be a
doctor. In the first week of January, 2005 Nesmith allegedly removed a mass
from the movant's neck and left the resulting incision bandaged but open to
permit infection to drain. Movant subsequently developed a rash on his
neck/upper back for which Nesmith prescribed a skin cream. Movant's skin
condition worsened and in mid-March, 2005 Nesmith prescribed Diphenhydramine to
relieve the pain and itching. The claim alleges movant then broke out in
blotches which a subsequent examination by a dermatologist at Coxsackie Regional
Medical Unit attributed to "an allergic reaction to the medications which had
been prescribed" (paragraph 16).
The claim asserts causes of action for negligence and medical malpractice
alleging Ted Nesmith was not a physician and was therefore unqualified to
perform "surgery". It further asserts that Great Meadow Correctional Facility
Health Services Director Dr. A. Paolano failed to properly supervise the
activities of facility medical staff.
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 actions complained of began in
the first week of January 2005 and continued periodically thereafter for several
. The application is therefore timely
as to a cause of action for medical malpractice subject to the two year and six
month Statute of Limitations prescribed in CPLR 214-a. The application is
timely as to the claim for negligent supervision which is subject to the
three-year Statute of Limitations contained in CPLR 214 (Sharon B v Reverend
244 AD2d 878).
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). The statutory factors are not exhaustive nor is 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 excuses advanced for the failure to timely serve and file a claim are
movant's status as a layperson and his ignorance of the requirements of the
Court of Claims Act relative to initiation of an action in this Court.
Ignorance of the law is not an acceptable excuse (Griffin v John Jay
College, 266 AD2d 16). In addition, the Court finds that neither movant's
confinement in a correctional facility nor the delay in learning that Mr.
Nesmith was not a licensed physician is a reasonable excuse for the delay
(see, Matter of Thomas v State of New York, 272 AD2d 650,
Bommarito v State of New York, 35 AD2d 458, Plate v State of New
York, 92 Misc 2d 1033; see also DeGroff v State of New York,
43 AD2d 993; Schwartz v Heyden Newport Chem. Corp., 12 NY2d 1073).
Accordingly, this factor weighs against granting the motion.
The intertwined issues of notice, opportunity to investigate and prejudice will
be considered together. Movant alleges in his affidavit in support of the
motion that he "made continuous complaints to the defendants [sic] and
ultimately filed a grievance detailing the facts of this claim." However, he
offered no documentation tending to support his otherwise generalized
assertions which are entirely lacking in factual details concerning when, how
and to whom such complaints were made. The Court finds movant has failed to
provide sufficient detail regarding the actions allegedly taken to inform the
defendant of its potential liability in this case and the factors of notice,
opportunity to investigate and prejudice weigh against granting the
As to the issue of merit, the defendant correctly points out that "[w]hether
the claim is grounded in negligence or medical malpractice, 'where medical
issues are not within the ordinary experience and knowledge of lay persons,
expert medical opinion is a required element of a prima facie case' (Wells v
State of New York, 228 AD2d 581, 582 , lv denied 88 NY2d 814
; see Duffen v State of New York, 245 AD2d 653, 653-654
, lv denied 91 NY2d 810 )"(Tatta v State of New York,
19 AD3d 817). While movant need not establish all the elements of a prima facie
case on a motion for late claim relief, expert medical proof is required to
"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).
With regard to the instant matter movant has provided no expert medical proof.
Not even his medical records are before the Court. There is no proof that Ted
Nesmith was not a physician or that accepted medical protocols required that the
procedure performed by Nesmith on movant's neck and upper back be performed only
by a licensed physician. As to the prescriptions issued by Nesmith to treat
movant's skin condition there is no proof that the medications were medically
inappropriate or that they caused or contributed to a worsening of movant's
condition. Finally, because Mr. Nesmith's professional status is uncertain
there is no way to determine whether his actions in treating the movant may
properly form the basis of a cognizable claim for negligent supervision.
As to the final factor, it cannot be determined on the basis of movant's
submission whether there is any other remedy available despite his general
assertion to the contrary.
Consideration of all of the above factors persuades the Court that this
application for late claim relief should be denied.