New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK , #2005-030-557, , Motion No. M-70557


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
November 4, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 3 were read and considered on Claimant's motion

for permission to serve and file a late claim brought pursuant to Court of Claims Act §10(6):

1,2 Notice of Motion; Affidavit by Clarence Smith and attached exhibits

  1. Affirmation in Opposition to Motion for Permission to File a Late Claim by Jeane L. Strickland Smith, Assistant Attorney General and attached exhibits[1]
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 available.[2] 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 2002)[3]; Nyberg v State of New York, 154 Misc 2d 199, 202 (Ct Cl 1992)[4]; Favicchio v State of New York, 144 Misc 2d 212, 214 (Ct Cl 1989)[5]; Jolley v State of New York, 106 Misc 2d 550, 551-552 (Ct Cl 1980)[6]; But cf. DePaolo v State of New York, 99 AD2d 762 (2d Dept 1984).[7]

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 329 (2004).

Accordingly, Claimant's motion for permission to serve and file a late claim [M-70557] is hereby in all respects denied.

November 4, 2005
White Plains, New York

Judge of the Court of Claims

[1] A document entitled "Claimant's Reply" was filed on September 19, 2005 - almost two weeks after the return date of the motion - and has not been considered by the Court.
[2] The Defendant has not opposed the motion on the ground of availability of another remedy, therefore this factor is presumed to weigh in claimant's favor. Cole v State of New York, 64 AD2d 1023, 1024 (4th Dept 1978)["Although the State argues in this appeal that claimant's inference of notice to it is based on equivocal facts, it filed no affidavit with the court claiming either prejudice or lack of notice. When answering affidavits are not produced, the facts alleged in the moving affidavits will be taken by the court as true . . . (citations omitted)."]
[3] Inmate's failure to establish merits of medical malpractice claim through expert medical evidence warranted denial of late claim motion where he claimed misdiagnosis and ineffectual treatment of cancer exacerbated his condition. A layperson alone could not say whether treatment deviated from accepted standards of care.
[4] Need opinion by qualified person to establish appearance of merit in claim alleging negligence based upon the absence of a highway median; late claim applicant has higher burden than one who has timely filed a claim.
[5] Opinion by medical expert without underlying basis for it - in this case the medical records the physician indicated he had reviewed - insufficient to establish appearance of merit in late claim motion.
[6] An attorney's affirmation by one experienced in medical malpractice litigation is not competent to establish the appearance of merit in application to file late claim alleging medical malpractice. Court did not rely on any other late claim factors in making determination to deny motion.
[7] Denial of inmate's motion to file late claim abuse of discretion where medical records furnished established that he suffered from the medical conditions that the Motrin packaging literature advised precluded prescription of the drug, in a claim alleging medical malpractice based upon physician's allegedly improper direction that inmate take Motrin. No medical affidavit needed to be furnished under these circumstances.