Bruce Maddox, the Claimant herein, alleges in Claim Number 110158 that
Defendant's agents failed to provide him with adequate medical treatment while
he was incarcerated after he slipped and fell in the mess hall at Green Haven
Correctional Facility (hereafter Green Haven) on September 3, 2004. He may also
be alleging - although it is not clear from the language in the claim - that he
went to work despite instruction that he not participate in work assignments or
recreational activity for thirteen (13) days. Claimant's medical malpractice
claim was served by regular mail upon the Office of the Attorney General on
November 23, 2004, [Exhibit 1, Affirmation in Support by Jeane L. Strickland
Smith], and filed in the Office of the Chief Clerk of the Court of Claims on
November 30, 2004.
The filing and service requirements contained in Court of Claims Act
§§10 and 11 are jurisdictional in nature and must be strictly
construed. Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723
(1989); See also Welch v State of New York, 286 AD2d 496,
729 NYS2d 527, 529 (2d Dept 2001); Conner v State of New York, 268 AD2d
706, 707 (3d Dept 2000). Indeed, the statute provides in pertinent part ". . .
[n]o judgment shall be granted in favor of any claimant unless such claimant
shall have complied with the provisions of this section applicable to his claim
. . . " Court of Claims Act §10.
Court of Claims Act §11(a)(i) provides that ". . . a copy [of the claim]
shall be served personally or by certified mail, return receipt requested, upon
the attorney general . . ." within the time prescribed in Court of Claims Act
§10; and service is complete when it is received in the Attorney General's
Office. Court of Claims Act §11(a)(i). Service upon the Attorney General
by ordinary mail is generally insufficient to acquire jurisdiction over the
State, unless the State has failed to properly plead jurisdictional defenses or
raise them by motion. Court of Claims Act §11(c); Edens v State of New
York, 259 AD2d 729 (2d Dept 1999); Philippe v State of New York, 248
AD2d 827 (3d Dept 1998).
The Claimant has the burden of establishing proper service [Boudreau v
Ivanov, 154 AD2d 638, 639 (2d Dept 1989)] by a preponderance of the
evidence. See Maldonado v County of Suffolk, 229 AD2d 376 (2d Dept
Here, the Claimant has not established that he served the Claim upon the
Attorney General either personally or by certified mail, return receipt
requested as required, and the Defendant has raised this jurisdictional issue in
a timely motion. Thus Claimant has failed to establish, by a fair preponderance
of the credible evidence, that the Attorney General was served with a copy of
the claim as required by Court of Claims Act §11(a). Accordingly,
Defendant's motion to dismiss (M-69481) is hereby granted, and Claim Number
110158 is hereby dismissed in its entirety.
In order to determine an application for permission to serve and file a late
claim, the Court must consider, "among other factors," the six factors set
forth in §10(6) of the Court of Claims Act. The factors stated therein
are: (1) whether the delay in filing the claim was excusable; (2) whether the
State had notice of the essential facts constituting the claim; (3) whether the
State had an opportunity to investigate the circumstances underlying the claim;
(4) whether the claim appears meritorious; (5) whether substantial prejudice
resulted from the failure to timely serve upon the Attorney General a claim or
notice of intention to file a claim, and the failure to timely file the claim
with the Court of Claims; and (6) whether any other remedy is available. The
Court is afforded considerable discretion in determining whether to permit the
late filing of a claim. See e.g. Matter of Gavigan v State of New
York, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any
particular factor is not dispositive Bay Terrace Coop. Section IV, Inc. v
New York State Employees' Retirement System Policemen's & Firemen's
Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New
York, 288 AD2d 172 (2d Dept 2001).
Additionally, the motion must be timely brought in order to allow that a late
claim be filed ". . . at any time before an action asserting a like claim
against a citizen of the state would be barred under the provisions of article
two of the civil practice law and rules . . . " Court of Claims Act §10(6)
. Here, the applicable statute of limitations is three (3) years, thus the
motion is timely. Civil Practice Law and Rules §214.
A claim appears to be "meritorious" within the meaning of the statute if it is
not patently groundless, frivolous or legally defective and a consideration of
the entire record indicates that there is reasonable cause to believe that a
valid cause of action exists. Matter of Santana v New York State Thruway
Auth, 92 Misc 2d 1 (Ct Cl 1977). Claimant need not establish a prima
facie case at this point, but rather the appearance of merit. See
e.g. Jackson v State of New York, Claim No. None, Motion No. M-64481
(Midey, J., February 28, 2002).
Claimant indicates that there was a delay in filing his claim because he
inadvertently mailed the copy addressed to the Chief Clerk of the Court of
Claims by certified mail, return receipt requested, instead of the copy sent to
the Office of the Attorney General, "because of . . . [his] mental illness and
the anti-depressant drugs remron and saraquil the defendant have been giving the
claimant to help him deal with the lost of family members and his placement in
Special Housing Unit, where . . . [he] had no access to professional legal
counsel or to the prison law library clerk." [¶2, Motion for Permission to
File a Late Claim]. He argues that the State had notice of the essential facts
constituting the "claim for my injuries and medical malpractice in that medical
personnel in the prison dispensary were aware of my medical illness and my
mental health illness, and the State also had an opportunity to investigate the
cause of this illnesses, which is the subject of this claim by not alleging that
defendant did not have an opportunity to investigate my claim in defendant's
Affirmation in Support of Motion to Dismiss . . . " [Ibid, ¶4].
His mere incarceration, and movement within the system, and the asserted
difficulty in obtaining representation by counsel or otherwise conferring with
counsel, does not constitute a reasonable excuse in the nature of a disability,
or otherwise. See Plate v State of New York,
92 Misc 2d 1033,
1037-1039 (Ct Cl 1978). With respect to any asserted mental impairment, more
than the claimant's self-serving statement that he was not in the right mental
condition to pursue his claim is required, in the form of medical records or a
physician or psychiatrist's affidavit. See Cabral v State of New
, 149 AD2d 453 (2d Dept 1989)
Goldstein v State of New York
, 75 AD2d 613, 614 (2d Dept
. There must be some showing that the
circumstances of his incarceration prevented claimant from taking effective
steps to perfect his claim, or contact an attorney. Bommarito v State of New
, 35 AD2d 458, 459 (4th Dept 1971). Claimant has made no such showing,
thus this factor weighs against him.
Similarly, his claim of lack of knowledge of the law and an inability to retain
counsel do not constitute acceptable excuses. Innis v State of New York,
92 AD2d 606 (2d Dept 1983), affd, 60 NY2d 654 (1983); Musto v State of
New York, 156 AD2d 962 (4th Dept 1989).
The absence of an excuse, however, is but one of the factors to be considered,
and does not necessarily preclude relief. Bay Terrace Coop. Section IV, Inc.
v New York State Employees' Retirement System Policemen's & Firemen's
Retirement System, supra.
The closely related factors of notice, opportunity to investigate and prejudice
to the State, considered together, weigh slightly toward granting Claimant's
motion. Any pictures or other documentation of the incident would presumably be
maintained by Defendant's agents, including any inmate injury reports or medical
records. Additionally, the passage of time has not been so great that the
State's ability to investigate is impeded to its prejudice. Cf. Edens
v State of New York, 259 AD2d 729 (2d Dept 1999) (Two years and
two and one-half months from date of accrual). Accordingly, these
factors weigh in favor of granting the motion.
As to whether another remedy is available to Claimant, the Assistant Attorney
General suggests that relief may have been found in pursuit of an inmate
grievance, in a request for over the counter pain medication or in a request for
referral to an outside medical consultant: all avenues apparently not chosen by
Claimant. [¶6. Affirmation in Opposition to Motion to File Late Claim].
While none of these avenues would result in money damages, he might have secured
physical relief had they been pursued. This factor does not weigh either in
favor of granting or denying the motion.
As noted, Claimant need not establish his claim prima facie, but rather
show the appearance of merit. Jackson v State of New York, supra.
As noted by the Assistant Attorney General, the Claim does not indicate exactly
what State action is identified as having caused Claimant's injury. Claimant
writes that he fell on September 3, 2004 - and is perhaps claiming serious
injury on a negligence basis from that fall - and then states that he did not
receive treatment for pain despite his complaints, and despite x-rays taken on
October 27, 2004 - a possible medical malpractice claim. In his Motion for
Permission to File a Late Claim he seems to indicate that his claims are that
the State's agents committed medical malpractice accruing from October 27, 2004,
and refers to the fall itself as "the incident underlying this claim." [¶1,
Motion for Permission to File a Late Claim].
To establish a prima facie case of negligence the following elements
must exist: (1) that defendant owed the claimant a duty of care; (2) that
defendant failed to exercise proper care in the performance of that duty; (3)
that the breach of the duty was a proximate cause of plaintiff's injury; and (4)
that such injury was foreseeable under the circumstances by a person of ordinary
prudence. If he is attempting to proceed on a negligence basis, there is no
indication that the State had notice of any dangerous condition or other
information that might establish the elements of such a cause of action.
If he is attempting to assert a medical malpractice cause of action, it is
axiomatic that more than his own conclusory assertions of malpractice is
required to establish the appearance of merit on a motion for permission to
serve and file a late claim. No physician's affidavit or detailed medical
records have been submitted to support his allegations. Perez v State of New
York, 293 AD2d 918, 919 (3d Dept 2002); Colson v State of New York,
115 Misc 2d 402 (Ct Cl 1982); Jolley v State of New York, 106 Misc 2d 550
(Ct Cl 1980). The proposed claim does not have the appearance of merit.
Accordingly, in view of the foregoing, and upon reviewing and balancing all of
the factors enumerated in Court of Claims Act §10 (6), including the all
important issue of merit, Claimant's motion for permission to file a late claim
(M-69490) is hereby denied in its entirety.