Claimant asserts in his proposed claim that Defendant's agents at Green Haven
Correctional Facility (hereafter Green Haven) denied him medical treatment from
March 16, 2005 to July 15, 2005 for various medical conditions including
"hypertension and artery blockage ‘Ischemia'." [Proposed Claim,
¶¶ 1-3]. He indicates that treatment had been recommended by an
outside hospital on March 15, 2005, [ibid. ¶5], and that as a result
of the "unreasonable denial of recommended medication . . ." he suffered
"unnecessary pain, discomfort and anguish." [ibid. ¶4]. He asks for
damages for "punitive injury" in the amount of $50,000; "physical pain and
discomfort" in the amount of $100,000 and $50,000 in damages for "psychological,
anguish, emotional suffering". [ibid ¶ 7].
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 - assuming a medical
malpractice claim - is two years and six months, thus the motion is timely.
Civil Practice Law and Rules
§ 214-a .
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).
In his Affidavit in support of the present motion, Claimant indicates more
specifically that medical personnel at Vassar Brothers Hospital prescribed the
drug Lopressor for the medical conditions treated, yet upon his return to Green
Haven on March 15, 2005 he was not given the medication. The discharge
instructions from the hospital indicate the prescription of Lopressor, and also
indicate that he should obtain follow-up treatment with his physician at Green
Haven. [Affidavit by Clarence Smith, Exhibit A]. His treating physician at Green
Haven's infirmary did not prescribe Lopressor at that time, [See ibid.
Exhibit B] and there followed a series of medical visits in the succeeding
months - including visits to a cardiac clinic outside the facility - ultimately
resulting in a diagnosis of "Ischemia and Hypertension", and medication for
these conditions. [ibid. Exhibits 1B and E].
Claimant apparently filed a grievance relative to the failure by the facility
to prescribe the medication Lopressor as suggested by the outside consultants,
which resulted in a Central Office Review Committee (CORC) finding that earlier
determinations by the Superintendent were correct. [ibid. Exhibits C and
D]. The CORC confirmed that the "Facility Health Services Directors . . . have
the sole responsibility for providing treatment to the inmates under their care.
The FHSDs have the responsibility of determining what outside health referrals
are needed by the target population. Outside specialists may only make
recommendations for treatment; however, the implementation of those
recommendations is at the discretion of the FHSDs, based on their professional
judgment." [ibid. Exhibits C and D].
Although Claimant has appended copies of some medical records, no affidavits
by, for example, a physician or other medical expert, have been submitted to
explain those records.
Claimant does not offer any reason or excuse as to why the claim was not served
and filed within ninety (90) days of its accrual on March 15, 2005 when he
alleges he was denied proper medication. Claimant has not established any
reasonable excuse for the delay between the time the claim purportedly arose and
the time the motion was filed. Accordingly, this factor weighs against him.
The closely related factors of notice, opportunity to investigate and prejudice
to the State, considered together, weigh marginally toward granting Claimant's
motion. The State is not assumed to have actual knowledge of events giving rise
to a claim merely because it owns and runs the facility in which it occurred, or
because a grievance was filed. 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.
It is well settled that the appearance of merit is viewed as the most important
factor to consider in an application to serve and file a late claim. When the
proposed claim asserts a cause of action requiring an expert opinion in order to
be established, an affidavit of merit from a qualified expert should be included
with the application. Perez v State of New York
, 293 AD2d 918 (3d Dept
; Nyberg v State of New York
Misc 2d 199, 202 (Ct Cl 1992)
; Favicchio v
State of New York
, 144 Misc 2d 212, 214 (Ct Cl
; Jolley v State of New York
Misc 2d 550, 551-552 (Ct Cl 1980)
cf. DePaolo v State of New York
, 99 AD2d 762 (2d Dept
In a medical malpractice claim, the Claimant has the burden of proof and must
prove (1) a deviation or departure from accepted practice and (2) evidence that
such deviation was the proximate cause of the injury or other damage. A cause
of action is premised in medical malpractice when it is the medical treatment,
or the lack of it, that is in issue. A Claimant must establish that the medical
caregiver either did not possess or did not use reasonable care or best judgment
in applying the knowledge and skill ordinarily possessed by practitioners in the
field. The "‘claimant must [demonstrate] . . . that the physician
deviated from accepted medical practice and that the alleged deviation
proximately caused his . . . injuries' (Parker v State of New York , 242
AD2d 785, 786)." Auger v State of New York, 263 AD2d 929, 931 (3d Dept
1999). Without such medical proof, no viable claim giving rise to liability on
the part of the State can be sustained. Hale v State of New York, 53 AD2d
1025 (4th Dept 1976), lv denied 40 NY2d 804 (1976). A medical
expert's testimony is necessary to establish, at a minimum, the standard of
care. Spensieri v Lasky, 94 NY2d 231 (1999).
In this case, only the unsupported assertions of the Claimant have been
submitted in support of any claim of malpractice. No competent affidavit, by a
treating physician or an expert witness whose opinion was based upon the
available medical records, has been submitted to support the allegation of
medical malpractice. There is no medical evidence on any medical issue and thus
claimant has not established the appearance of merit of his claim.
If a claim can be read to allege simple negligence, or medical negligence, then
the alleged negligent omissions or acts by the State's employees can be readily
determined by a fact finder using common knowledge without the necessity of
expert testimony. Coursen v New York Hospital-Cornell Med. Center, 114
AD2d 254, 256 (1st Dept 1986). Similarly, the State may be found liable for
ministerial neglect if its employees fail to comply with an institution's own
administrative procedures and protocols for dispensing medical care to inmates.
Kagan v State of New York, 221 AD2d 7,10 (2d Dept 1996).
There is no indication that the actions of medical caregivers amounted to
simple negligence or ministerial neglect. Coursen v New York
Hospital-Cornell Med. Center, supra; Kagan v State of New
York, supra; cf. Jacaruso v State of New York, Claim No. 97721
(Lebous, J., filed September 9, 2002). The claim cannot be read to assert such
theories, given that it inherently requires an assessment concerning the
adequacy and effect of the medical care provided.
Finally, no demand for punitive damages may be maintained against the State of
New York or its subdivisions. Sharapata v Town of Islip, 56 NY2d 332, 333
(1982); see also Krohn v New York City Police Dept., 2 NY3d
Accordingly, Claimant's motion for permission to serve and file a late claim
[M-70557] is hereby in all respects denied.