New York State Court of Claims

New York State Court of Claims

HIMKO v. THE STATE OF NEW YORK, #2005-019-542, Claim No. NONE, Motion No. M-70169


Synopsis


Claimant's motion for leave to file a late claim relative to proposed negligent supervision is granted, but denied with respect to leave to file a late claim based upon medical malpractice/negligence; poor person relief is denied as well.

Case Information

UID:
2005-019-542
Claimant(s):
ANDREW HIMKO
Claimant short name:
HIMKO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-70169
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
ANDREW HIMKO, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Geoffrey B. Rossi, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
June 21, 2005
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant, an inmate appearing pro se, moves for permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6), as well as permission to proceed as a poor person. The State of New York (hereinafter "State") opposes both aspects of the motion.

This claim arose during claimant's incarceration at Elmira Correctional Facility (hereinafter "Elmira") on August 5, 2004. Claimant alleges that he was punched around the head and face by an unidentified inmate in the mess hall area of Elmira when a correction officer left his post. Claimant also alleges that thereafter his repeated requests for medical attention were ignored and he was not seen by a facility physician until more than five months later on January 21, 2005. Claimant alleges that he is required to wear a hearing aid as a result of this delay in receiving medical treatment.


Motion for permission to file a late claim

As a threshold matter, the court must first determine whether it has jurisdiction to review and determine this motion relative to the proposed causes of action.[1] The court has jurisdiction over a motion to late file when it is filed within the comparable time period for bringing similar actions against a citizen of the state. (CCA 10 [6]). Here, although claimant's papers are not entirely clear, the court will deem claimant's motion as seeking permission to file a late claim alleging both a negligent supervision cause of action based on the underlying assault, as well as a medical malpractice/negligence cause of action regarding his hearing loss. The comparable time period for a medical malpractice cause of action is two and one half years, while the comparable time period for a negligence cause of action is three years. (CPLR 214-a & 214). As such, this motion filed on May 9, 2005 is timely regarding both proposed causes of action.


Turning to the substance of this motion, the 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. the claimant has any other available remedy.



At the outset, the court notes that the only factor directly addressed by claimant is his excuse for the delay in filing his claim. Thus, the court has extrapolated, when possible, the remaining factors from the proposed claim.


The first factor that should be addressed is whether the proposed claim appears meritorious since it has been characterized as the most decisive component in determining a motion under CCA 10 (6) and it would be futile to permit a meritless claim to proceed. (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10). In order to establish a meritorious claim, claimant must establish 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. (id. at 11). With respect to the factor of merit, the court will address the two proposed causes of action separately.


With respect to the proposed cause of action alleging claimant's assault was due to the State's negligent supervision of inmates, claimant alleges in very simple terms that when a correction officer left his post he was assaulted by another inmate. While the State does not concede liability, it does not strenuously dispute that "question[s] of fact" may have been raised for purposes of a late filing motion. (Affirmation of Geoffrey B. Rossi, AAG, ¶ 13). Although the existence of questions of fact is not the standard on a late filing motion, it is well-settled that "[f]acts stated in a motion for leave to file a late claim against the State are deemed true for purpose of motion, when not denied or contradicted in opposing affidavits." (Sessa v State of New York, 88 Misc 2d 454, 458, affd 63 AD2d 334, affd 47 NY2d 976). Here, the State does not dispute that an attack occurred or that a correction officer left his post. Consequently, the court finds that the proposed negligent supervision claim appears meritorious within the meaning of CCA 10 (6) and, as such, the factor of merit weighs in claimant's favor relative thereto.


With respect to the proposed cause of action based upon medical malpractice/negligence, claimant's papers make general statements regarding the delay in receiving medical treatment and the loss of hearing/use of a hearing aid caused as a result thereof.[2] 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.[3] (Schreck v State of New York, 81 AD2d 882).


Here, claimant has not submitted an expert affidavit, but rather only his own conclusory statements that medical treatment was required and delayed for five months resulting in his need for a hearing aid. In fact, claimant has not submitted any medical records whatsoever in support of his application. Based on the foregoing, the court finds that claimant's proposed allegations, be they based on medical malpractice and/or medical negligence, involve matters beyond common knowledge that necessitate the input of an expert. (Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804). As such, the court finds that claimant has failed to establish that his claim relative to the proposed medical malpractice/negligence appears meritorious.


The remaining factors will be discussed in the context of both proposed causes of action. With respect to claimant's excuse for his delay in filing the claim, claimant offers his lay person status, ignorance of the law, lack of financial resources, and difficulties in accessing the law library and legal assistance. The State merely refers the court to claimant's arguments. (Affirmation of Geoffrey B. Rossi, AAG, ¶ 10). 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, 835-836). This factor weighs against claimant.


Claimant does not specifically address the remaining factors of notice of the essential facts, opportunity to investigate, lack of substantial prejudice, and the lack of any alternate remedy. The State concedes that it had notice of the essential facts and actually investigated this matter internally and cannot demonstrate substantial prejudice to the State resulting from the delay. (Affirmation of Geoffrey B. Rossi, AAG, ¶ ¶ 12 &14 ). Finally, the State concedes that claimant has no alternate remedy. (Affirmation of Geoffrey B. Rossi, AAG, ¶ 15). Accordingly, the court finds these four factors weigh in favor of granting claimant's motion.


Consequently, upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the court finds as follows:


(1) with respect to the negligent supervision cause of action, that five of the six factors, including the all-important factor of merit, weigh in favor of claimant's motion for permission to file a late claim pursuant to CCA 10 (6); and


(2) with respect to the medical malpractice/negligence cause of action, that two 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).


Motion for poor person relief

Insofar as this motion also seeks poor person relief and assignment of counsel, such application is premature. Claimant should make the application anew when he files the now permitted claim with the court.


In view of the foregoing, IT IS ORDERED that claimant's motion for permission to late file, Motion No. M-70169, is GRANTED IN PART and DENIED IN PART. Claimant shall file a claim with the Clerk of the Court and serve a copy of the claim upon the attorney general within sixty (60) days from the date of filing of this Decision and Order with the Clerk of this Court. The proposed claim need not be revised, but will be deemed to allege solely a negligent supervision cause of action in accordance with the terms hereof. The service and filing of the claim shall be in conformity with all applicable statutes and rules of the court with particular reference to CCA 10, 11 and 11-a; and


IT IS FURTHER ORDERED, claimant's request for poor person relief is denied without prejudice.


June 21, 2005
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims


The court has considered the following papers in connection with this motion:
  1. Notice of Motion No. M-70169, dated May 5, 2005, and filed May 9, 2005.
  2. Affidavit of Andrew Himko, in support of motion, sworn to March 10, 2005, with attachments.
  3. Proposed Claim, verified March 10, 2005.
  4. Notice of Motion, sworn to March 29, 2005.
  5. "Affidavit For Poor Person", of Andrew Himko, sworn to March 23, 2005.
  6. Affirmation of Geoffrey B. Rossi, AAG, in opposition to motion, dated June 8, 2005, and filed June 10, 2005.
  7. Affirmation of Geoffrey B. Rossi, AAG, in opposition to poor person motion, dated June 8, 2005, and filed June 10, 2005.

[1]Claimant's service of a notice of intention on or about March 21, 2005 upon the Attorney General's office by certified mail, return receipt requested, was untimely and, thus did not extend his time to serve a claim. (CCA 10).
[2]As previously noted, the court has liberally construed claimant's papers to include a proposed medical malpractice/negligence cause of action. As such, the fact that the State's opposing papers do not address such a proposed cause of action is of no import.
[3]Claimant has not argued that any exception to this general rule is applicable on these facts. (Kambat v St. Francis Hosp., 89 NY2d 489, 496).