New York State Court of Claims

New York State Court of Claims

MADDOX v. THE STATE OF NEW YORK , #2005-030-505, Claim No. 110158, Motion Nos. M-69481, M-69490


Synopsis



Case Information

UID:
2005-030-505
Claimant(s):
BRUCE MADDOX
Claimant short name:
MADDOX
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110158
Motion number(s):
M-69481, M-69490
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
BRUCE MADDOX, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
February 2, 2005
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 6 were read and considered on Defendant's motion to dismiss (M-69481) brought pursuant to Court of Claims Act §§10 and 11; and Claimant's motion for permission to serve and file a late claim (M-69490) brought pursuant to Court of Claims Act §10(6):
1,2 Notice of Motion; Affirmation in Support by Jeane L. Strickland Smith, Assistant Attorney General and attached exhibit

  1. Motion for Permission to File a Late Claim by Bruce Maddox, Claimant and attachments
  1. Affirmation in Opposition to Motion to File Late Claim by Jeane L. Strickland Smith, Assistant Attorney General and attached exhibits
  1. Reply to Affirmation in Opposition to Dismiss Claim by Bruce Maddox, Claimant
  1. Filed Papers: Claim
MOTION TO DISMISS
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 1996).

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.
MOTION FOR PERMISSION TO SERVE AND FILE LATE CLAIM
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 York, 149 AD2d 453 (2d Dept 1989)[1]; Goldstein v State of New York, 75 AD2d 613, 614 (2d Dept 1980)[2]. 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 York, 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.

February 2, 2005
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1] "The only excuse offered in support of the contention that the delay was excusable was a conclusory assertion by the claimant's counsel, unsupported by a physician's affidavit, that the claimant's alleged hospitalization at some undisclosed time delayed her from contacting an attorney, and that the claimant had no knowledge of the 90-day statutory filing requirement."
[2] "Although claimant alleged she was either hospitalized or convalescing for the entire period during which she could have timely filed the claim, such alleged incapacity is inadequate as an excuse for late filing without either a physician's affidavit or hospital records . . . (citation omitted)."