New York State Court of Claims

New York State Court of Claims

ABAIR v. THE STATE OF NEW YORK, #2005-032-027, Claim No. N/A, Motion No. M-69200


Motion for late claim denied where the pro se inmate movant seeks to commence an action based on medical malpractice without either an affidavit of merit from an expert or medical records that are sufficient to demonstrate that there is reason to believe that a viable cause of action exists. In addition, movant seeks a form of relief – a direction to DOCS to commence treatment – which is not within the power of this Court to grant.

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:
Roy Abair, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Michael C. Rizzo, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
February 25, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


Movant's proposed claim alleges that on October 8, 2003, at Altona Correctional Facility, he was directed to move the bunk bed from his cube area so that the floor could be refinished. Movant states that he is advanced in years and that, as he and another inmate were moving the bed back into the cube area, his back "gave out." Movant went to sick call the following day, at which time it was determined that x-rays were not needed. He was placed on bed rest. Movant states that from that his back has continued to bother him since that time and that in early January 2004, he learned that a CAT scan, performed for unrelated reasons, revealed that he had a lower thoracic vertebral fracture. He has not received treatment for this condition. In his affidavit accompanying the motion, movant states that he seeks the following relief: "to be, now, treated for this fracture, and to be compensated . . . for my past pain and suffering and for the possibility of permanent damage (Abair statement, 5th ¶).

In determining a motion for permission to file a late claim, the Court must consider, among other relevant factors, the six factors set forth in subdivision 6 of section 10 of the Court of Claims Act: 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 to be meritorious; 5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and 6) whether the claimant has another available remedy. The Court in the exercise of its discretion balances these factors. The presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 [1982]). The most critical of these factors, and the only one that on its own can require that a motion to late file be denied, is the apparent merit of the proposed claim. The threshold that must be met is quite low, in that the litigant need establish only that his claim is not patently groundless, frivolous, or legally defective and 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]).

In support of his proposed claim, movant has supplied only his own statement regarding back pain since the October 2003 incident and a radiologist's report of the chest x-ray that was taken on January 2, 2004. In addition to reporting on the status of movant's lungs, the report contained a brief note stating, "[d]eformity in the lower thoracic spine is noted on the lateral projection." In the section for impressions, the doctor noted "lower thoracic vertebral compression fracture." There is nothing on this document to indicate how long the fracture had been present, whether it could have been caused by the incident reported by movant, and whether the condition could or should be treated.

As a general rule, separate affidavits of merit, while helpful to the Court, are not generally required to accompany an application to file a late claim (Matter of Santana v New York State Thruway Authority, 92 Misc 2d at 11, supra). Where, however, the claim is based on alleged medical or other specialized wrongdoing, such affidavits may be necessary (Klingler v State of New York, 213 AD2d 378 [2d Dept 1995][claimant's "unsupported opinion" does not establish that claim has merit]; Schreck v State of New York, 81 AD2d 882 [2d Dept 1981][must have medical affidavit establishing a causal connection]. In some instances, however, detailed medical records, with no supporting affidavit, may suffice (DePaolo v State of New York, 99 AD2d 762 [2d Dept 1984]). Here, movant has provided no affidavit from a medical expert to confirm that there is some treatment available for the vertebral fracture, which should have been given to movant, and to establish a probable causal connection between the events of October 8, 2003 and the fracture, nor has he submitted medical records, other than the one one-page document, that could establish those factors. Without more, it is impossible for the Court to determine if there is "reasonable cause to believe that a valid cause of action exists" (Matter of Santana v New York State Thruway Authority, supra). While it may seem unduly harsh to require movant, a prison inmate, to contact a doctor who could provide such an affidavit at this very early stage in the proceedings, it is a step that would have to be taken at some point in order to prove this cause of action, and claimant should evaluate whether there is merit to his claim before expending the resources necessary to prove it.

Another significant problem with the proposed claim, as it is described by movant, is that it seeks a form of relief – a direction that treatment for his back condition commence – that is not within this Court's power to grant. The Court of Claims has subject matter jurisdiction only over claims in which the essential nature of the claim is to recover money damages (Safety Group No. 194--New York State Sheet Metal Roofing & A.C. Contrs. Assn. v State of New York, 298 AD2d 785 [3d Dept 2002]). Consequently, the Court must inquire as to "[w]hether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim" (Matter of Gross v Perales, 72 NY2d 231, 236 [1988]). In this instance, any claim for money damages must be secondary to movant's attempt to obtain treatment.

Having considered the factors relevant to whether a litigant should be permitted to file a late claim, particularly the factor of the apparent merit of the proposed claim, the Court exercises its discretion to deny this motion.

February 25, 2005
Albany, New York

Judge of the Court of Claims

The following papers were read on movant's motion for permission to file an untimely claim:

1. Notice of Motion and Supporting Papers of Roy Abair, pro se;

2. Affidavit in Opposition of Michael C. Rizzo, Esq., AAG.