NASH v. THE STATE OF NEW YORK, #2005-019-524, Claim No. NONE, Motion No.
Claimant's motion for permission to file late claim alleging assault by
correction officers and medical malpractice and/or medical negligence is
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FERRIS D. LEBOUS
NEHEMIAH NASH, PRO SE
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Geoffrey B. Rossi, Assistant Attorney General, of counsel
April 1, 2005
See also (multicaptioned
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.
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 ).
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.
(CPLR 215 ). 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. 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.
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
, 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).
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
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,
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
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
HON. FERRIS D. LEBOUS
Judge of the Court of Claims
The court has considered the following papers in connection with this
Notice of Motion No. M-69854, dated December 16, 2004, and filed March 10,
Affidavit of Nehemiah Nash, in support of motion, sworn to December 22,
Proposed Claim, verified December 22, 2004.
Affirmation of Geoffrey B. Rossi, AAG, in opposition to motion, dated March 16,
2005, and filed March 18, 2005, with attached exhibits.
New York State law does not recognize a
negligent assault cause of action. (Sanchez v Wallkill Cent. School
, 221 AD2d 857).
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.
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.