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
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 ). 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
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
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.
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
(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);
(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
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