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
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, M-64481 (Midey, J.,
February 28, 2002).
In his Motion for Permission to File a Late Claim the Claimant states that the
present application is timely, and that the delay is excusable because he is not
a lawyer, had no access to qualified legal assistance or to a law library, and
was unable to draft a claim himself. [Motion for Permission to File a Late
Claim, ¶¶1-2]. He argues that the State had notice of the essential
facts in that "prison officials and medical department staff were aware of the
incident, and were negligent in their response and/or totally disregarded the
rules, policies and procedures that should have been conducted." [ibid.
¶3]. Claimant asserts that he has no other available remedy. [ibid.
In the proposed Claim, Mr. McKinney alleges that on March 7, 2004 at
approximately 8:00 a.m. at Downstate Correctional Facility (hereafter
Downstate), he was drinking a glass of milk when he "became aware of a bloody
band-aid in the bottom of . . . [his] glass of milk." [Claim, ¶ 3]. When he
told Correction Officer Woods, one of the correction officers, he was advised to
show the cup to someone else. When Claimant showed the cup to Correction
Officer Graham, the mess hall officer, and Correction Officer McCue, Officer
Graham allegedly "took the cup showing it to the messhall workers behind the
line and saying ‘what the f***k is this s**t, you guys f****d up'; and
then he threw the band-aid in the garbage." [id.]. Claimant went to sick
call the following day and asked medical personnel to "perform a blood work-up
or any other tests to ensure that . . . [he] was not contaminated by any
biohazardous bacterial agents" but was refused, and sent back to his cell.
[id.]. He claims that as a result of being denied medical treatment in
violation of New York State Department of Correctional Services (hereafter DOCS)
policy and procedure concerning treatment of officers and inmates who may come
in contact with blood or any other potentially hazardous material he has
suffered "immense physical [i.e. loss of approximately twenty (20) pounds] and
psychological anguish [i.e. recurring nightmares about contracting terminal
diseases]." [ibid. ¶¶ 4, 7]. He also asserts that the employees
were negligent in disposing of the band-aid, because official policy requires
that it be retained for testing. [ibid. ¶ 5]. The proposed claim
states that a Notice of Intention to file a claim was served on the Office of
the Attorney General on June 28, 2004. [ibid. ¶ 8].
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). 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 against granting Claimant's motion as
well. In the attachments to his proposed Claim, Claimant includes a copy of an
"addendum", dated May 17, 2004, to a facility complaint he had apparently
originally filed on or about March 9, 2004. The addendum indicates that officers
threw the blood stained band-aid away, but does not indicate he was denied
medical treatment. The original grievance he filed two months earlier is not
attached to his proposed claim. A copy of the original grievance is, however,
included as part of the Defendant's submission, and appears to have been
addressed and resolved by confirming that regular health inspections occur, in a
Superintendent's decision dated March 30, 2004. [Affirmation in Opposition,
Exhibit 2]. Claimant did not appeal the Superintendent's decision. In any
event, it is over a year since the alleged incident, and Claimant apparently
never reported the incident completely. The State's ability to investigate is
impeded to its prejudice. Quilliam v State of New York, 282 AD2d 590 (2d
Dept 2001) (8 month delay); Edens v State of New York, 259 AD2d
729 (2d Dept 1999) (Two years and two and one-half months from date of
accrual); Matter of Gallagher v State of New York, 236 AD2d 400 (2d
Dept 1997) (State did not receive actual notice of claim until 9 months
after accident). Accordingly, these factors weigh against granting the
As noted, Claimant need not establish his claim prima facie, but rather
show the appearance of merit. Jackson v State of New York, supra.
If the allegations in the claim are accepted as true for the purposes of the
motion, Claimant has not made the requisite showing of merit in order to permit
late filing of his claim.
To establish 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.
It could be argued that Claimant has at least established that a duty was owed
to assure that those serving food in the prison mess hall - ostensibly under the
control of DOCS personnel - should perform their functions in compliance with
health regulations. Certainly, the image of drinking a cup of milk and finding a
blood stained band-aid within is a repugnant one. It could also be argued that
when faced with a potential for contact with blood of an undetermined origin
DOCS personnel should preserve the source of blood for testing for
contamination. Nonetheless, Claimant has not shown any injury - beyond vague
allegations of weight loss and sleeplessness - to even determine whether any
breach of duty owed to him could be a proximate cause of such injury. As stated
by the Assistant Attorney General, Claimant has not shown that any "tangible
injury . . . [resulted from] the alleged negligence, only a perceived harm.
Claimant has failed to provide a factual or medically documented basis for his
fear of contracting a terminal disease." [Affirmation in Opposition to Motion to
File Late Claim, ¶ 7]. See also McMoore v State of New York,
UID #2000-028-0007, Claim No. 90481 (October 2, 2000, Sise, J.).
Accordingly, and after balancing all the factors set forth at Court of Claims
Act §10(6), including the lack of any appearance of merit to the
allegations asserted in the proposed Claim, Claimant's Motion No. M-69809 for
permission to serve and file a late claim is in all respects denied.