New York State Court of Claims

New York State Court of Claims

NASH v. THE STATE OF NEW YORK, #2005-019-524, Claim No. NONE, Motion No. M-69854


Claimant's motion for permission to file late claim alleging assault by correction officers and medical malpractice and/or medical negligence is denied.

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:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Geoffrey B. Rossi, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
April 1, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, moves for permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6). Defendant State of New York (hereinafter "State") opposes the motion.

The proposed claim alleges that claimant was assaulted by correction officers at Southport Correctional Facility on January 5, 2004. Further, the proposed claim alleges that claimant received inadequate medical treatment for the injuries he suffered as a result of said assault. (Proposed Claim, ¶ ¶ 2 & 3).

It is undisputed that claimant served a notice of intention on April 1, 2004 on the Attorney General's Office by certified mail, return receipt requested. (State's Exhibit A). Said notice of intention includes references to a cause of action for assault and battery and, as will be discussed in more detail hereinbelow, allegations relative to claimant's medical treatment.

  1. Jurisdiction
As a threshold matter, the court must address whether it has the jurisdiction to review and determine this motion which is determined by whether the motion was filed within the statute of limitations period attributable to the underlying causes of action. (CCA 10 [6]).

1. Assault

CCA 10 (3-b) requires that claims based on intentional torts be commenced by the filing and service of a claim or by the service of a notice of intention on the Attorney General within 90 days of the date on which the claim arose. Here, claimant properly served a notice of intention alleging assault and battery on April 1, 2004, within 90 days from the date on which the assault and battery allegedly occurred. As such, said notice of intention extended claimant's time to file and serve the claim to "within one year after the accrual of such claim." (CCA 10 [3-b]). In other words, claimant had until January 5, 2005 to file and serve a claim based on an intentional tort. Claimant did not do so. Rather, claimant filed this motion on March 10, 2005. The timeliness of the late filing motion with respect to claimant's allegation of assault cause of action is dictated by the applicable limitations period for intentional torts, namely one year from the date of accrual.[1] (CPLR 215 [3]). This motion was filed on March 10, 2005, after the expiration of the one year period. As such, the court does not have the jurisdiction to review this motion relative to the allegations of an assault by correction officers and the court need not address the statutory factors regarding that proposed cause of action.[2]

2. Medical Allegations

Initially, the State argues that the notice of intention did not adequately raise any medical malpractice cause of action. (Affirmation of Geoffrey B. Rossi, AAG, ¶ 13). The court agrees.[3] CCA 11 (b) requires that a notice of intention state the time when and place where a claim arose and the nature of same in order "[t]o give the State prompt notice of an occurrence and an opportunity to investigate the facts to determine its potential liability [citation omitted]." (Cannon v State of New York, 163 Misc 2d 623, 626). While only substantial compliance with CCA 11 (b) is required, "[c]onclusory or general allegations of negligence that fail to adduce the manner in which the claimant was injured and how the State was negligent do not meet its requirements [citation omitted]." (Heisler v State of New York, 78 AD2d 767, 767-768).

Here, the notice of intention states, in pertinent part, as follows:

[h]aving complained about the difficulties ensuing on a daily basis to medical staff during sick call 'procedure'; the 'negligent' regard for claimants [sic] medical condition resulted in the clear and unnecessary/unwanton infliction of pain. the [sic] issue here is numerous 'letters' to the medical staff here regarding these issues and others; and on "both spectrums", i.e. here and [illegible], it is the duty of the state to hire and train 'professionals' able to professionally uphold state rules, regulations, policies, and 'professional conduct' as outlined and guaranteed by and the provisions established in lieu of NYS Constitution Article 1, §§§§ 12, 5, 6, and 11.

[State's Exhibit A; emphases in original].

In this court's view, this notice of intention contains no details as to the alleged denial of medical care and/or medical malpractice. In fact, from a review of the notice of intention it is impossible to determine the nature of the claimant's injury, the specific acts or omissions of the medical staff alleged to have been committed, what medical care was provided, if any, or how said care or lack thereof contributed to or exacerbated claimant's unnamed condition. (Cendales v State of New York, 2 AD3d 1165). As such, the court finds that the notice of intention was inadequate pursuant to CCA 11 (b) with respect to any alleged medical malpractice and/or medical negligence cause of action and, as such, failed to extend claimant's time to serve and file a claim with respect thereto. Consequently, the court will proceed with the 10 (6) analysis with respect to the proposed medical malpractice and/or medical negligence cause of action.

Whether claimant's proposed cause of action is described as involving medical malpractice or simple negligence, the court notes that it has jurisdiction to review and determine that portion of the motion whether it be deemed a medical malpractice (2 ½ year statute of limitations) or simple negligence (3 year statute of limitation) cause of action, since it was filed before the expiration of the shorter of the two limitation periods, namely two-and-one-half years. (CPLR 214 & 214-a).

  1. 10 (6) analysis
The substantive factors that the court must consider in determining a properly framed CCA 10 (6) motion are whether:

1. the delay in filing the claim was excusable;

2. the State had notice of the essential facts constituting the claim;

3. the State had an opportunity to investigate the circumstances underlying

the claim;

4. the claim appears to be meritorious;

5. 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

6. there is any other available remedy.

Whether the proposed claim appears meritorious has been characterized as the most decisive component in determining a motion under CCA 10 (6), since it would be futile to permit a meritless claim to proceed. (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). In order to establish a meritorious claim, claimant must establish his proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid claim exists. (id. at 11).

Here, claimant's proposed claim alleges that an MRI performed on February 14, 2004 revealed disc bulges and protrusions that are attributable to the assault of January 5, 2004. (Proposed Claim, ¶ 12). Additionally, claimant avers that he complained daily about his injuries "[t]hrough the proper sick call 'procedures', and was given the less effective treatment, to none at all, in an attempt to further 'conceal' the injuries suffered thereby in violation of the standards set forth by the Board of Regents, Part 29, Unprofessional Conduct § 29.1 (a)(b) (7)(5)(6) and § 29.2 (a)(6)(3)(7)." (Proposed Claim, ¶ 14).

It is well-settled that an application for permission to file a late claim motion sounding in medical malpractice generally requires further support in the form of an expert's affidavit of merit, for it is only through an affidavit from someone who has the qualifications to allege a deviation from generally accepted medical standards setting forth facts which establish said deviation that the court may determine the potential merit of the proposed claim. (Matter of Perez v State of New York, 293 AD2d 918, 919; Matter of Gonzalez v State of New York, 299 AD2d 675, 676). Here, to the extent that claimant has attempted to plead a medical malpractice claim based upon the improper or the lack of treatment, such allegations involve matters beyond common knowledge that will necessitate the input of an expert. (Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804). However, claimant has not submitted an expert affidavit, but rather only his own conclusory statements that the subsequent failure to treat was inadequate. Nor has claimant established that any exception to the general rule is applicable on these facts or has he submitted any medical records whatsoever in support of his position. (Kambat v St. Francis Hosp., 89 NY2d 489). In sum, based on this record, the court finds that claimant has failed to establish that his claim relative to the proposed medical malpractice appears meritorious. Additionally, to the extent that this cause of action sounds in negligence, it fails to allege a prima facie case alleging negligence, proximate cause, or any acts of negligence. In sum, the proposed claim does not have the appearance of merit.

With respect to the remaining factors, claimant offers several excuses for his delay, namely that he is unfamiliar with the law, is incarcerated, and has numerous other criminal and civil matters pending. None of these excuses are valid. It is well-settled that neither ignorance of the law nor incarceration are acceptable excuses. (Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654; Hall v State of New York, 85 AD2d 835). This factor weighs against claimant.

Notice of the essential facts, opportunity to investigate and lack of substantial prejudice comprise the next three factors and will be discussed together since they involve analogous considerations. Claimant alleges that notice of the essential facts constituting this claim was obtained by the presence of the correction officers and employees during his assault, as well as the subsequent incident reports that must have been filed and his related medical treatment. However, while this may well be true with respect to the assault aspect of the proposed claim (which is no longer at issue), there is no indication that the State had notice of the essential facts of the alleged medical malpractice or medical negligence claim or opportunity to investigate the same within the statutory period. That having been said, the State has not argued that it would suffer substantial prejudice from the delay nor does it argue that the delay in filing has generated an unfair advantage to the claimant. As such, the court finds that the factors of notice of the essential facts and opportunity to investigate weigh against claimant, while the lack of substantial prejudice weighs in claimant's favor.

The final factor to consider is whether claimant has any available alternate remedy. Claimant asserts he has no available alternate remedy, which the State does not address. Based on this record, the court finds that this factor favors the claimant.

Upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the court finds that with respect to the proposed cause of action alleging medical malpractice and/or medical negligence, that four of the six factors, including the all-important factor of merit, weigh against claimant's motion for permission to file a late claim pursuant to CCA 10 (6). Additionally, the court finds that it does not have jurisdiction to consider the motion with respect to the proposed cause of action alleging an assault by correction officers.

In view of the foregoing, IT IS ORDERED that claimant's motion for permission to late file, Motion No. M-69854, is DENIED.

April 1, 2005
Binghamton, New York

Judge of the Court of Claims

The court has considered the following papers in connection with this motion:
  1. Notice of Motion No. M-69854, dated December 16, 2004, and filed March 10, 2005.
  2. Affidavit of Nehemiah Nash, in support of motion, sworn to December 22, 2004.
  3. Proposed Claim, verified December 22, 2004.
  4. Affirmation of Geoffrey B. Rossi, AAG, in opposition to motion, dated March 16, 2005, and filed March 18, 2005, with attached exhibits.

[1]New York State law does not recognize a negligent assault cause of action. (Sanchez v Wallkill Cent. School Dist., 221 AD2d 857).
[2]Although not raised by either party, the court notes the proposed claim also alleges that claimant told a sergeant after the alleged assault that he had previous problems with these correction officers. (Proposed Claim, ¶ 13). The court finds that the proposed claim does not set forth a cause of action for negligent supervision in relation to the sergeant's actions and/or inactions. In order for an employer to be held liable for injuries occasioned by an employee under theories of negligent hiring, negligent retention, and negligent supervision, a necessary element is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury. Here, claimant makes no allegation that these correction officers had previously assaulted him or any other inmate for that matter. Nor does claimant allege any other basis from which the State should have known of the employee's propensity toward violence.
[3]If the notice of intention was determined to have been adequate with respect to a medical malpractice or medical negligence cause of action, then this motion would have been deemed premature because claimant would have two years from the date of accrual to file and serve a claim which time period would not yet have expired.