New York State Court of Claims

New York State Court of Claims

HUGHES v. THE STATE OF NEW YORK, #2005-033-144, Claim No. None, Motion No. M-70422


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):

James J. Lack
Claimant’s attorney:
David Hughes, Pro Se
Defendant’s attorney:
Eliot Spitzer, New York State Attorney General
Third-party defendant’s attorney:

Signature date:
September 16, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


This is a motion brought by David Hughes (hereinafter "movant") for permission to file a late claim, pursuant to Court of Claims Act §10(6)[1]. The proposed claim is based on the alleged medical malpractice of defendant, the State of New York (hereinafter “State”). The alleged malpractice occurred between December 2003 through May 2005, while movant was an inmate at the McGregor Correctional Facility, Wilton, New York.

Movant alleges that care he received for allergic disorders which caused skin rashes and other complications was substandard.

In order to determine whether to grant a timely made application for permission to file a late claim, the Court must consider, among any other relevant factors, the six statutory factors set forth in Court of Claims Act §10(6):

(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 failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State;

(5) whether movant has another available remedy; and

(6) whether the claim appears to be meritorious.

Movant attributes his delay in filing to his lack of knowledge of legal recourse and his limited ability to confer with counsel.

Movant’s delay in timely serving and filing a claim or serving a notice of intention are attributable to ignorance. The ignorance of the law is not a reasonable excuse (see Sevillia v State of New York, 91 AD2d 792).

The second, third and fourth factors (notice of the essential facts constituting the claim; an opportunity to investigate the circumstances underlying the claim; and whether the delay resulted in substantial prejudice to the State) are related. The Court will consider these factors together.

All of movant's medical records are maintained by defendant, and the State has access to these records which would have provided it with notice of the essential facts and an opportunity to investigate (Rechenberger v Nassau County Medical Center, 112 AD2d 150). Therefore, there is no substantial prejudice to the State.

While the presence or absence of any one factor is not dispositive, (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s and Firemen’s Retirement System, 55 NY2d 979), the most critical factor is the apparent merit of the proposed claim. A movant need only establish that the proposed claim is not patently groundless, frivolous or legally defective and there is reasonable cause to believe that a valid cause of action exists (see Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). If a movant cannot meet this low threshold and the claim is patently without merit it would be meaningless and futile for the Court to grant the application even if all the other factors in Court of Claims Act § 10(6) weighed in favor of the movant’s request.

Since movant is seeking permission to file a late claim in a medical malpractice action, he must include a physician’s affidavit in support of his application. This affidavit is necessary to establish the allegations of deviations from accepted standards (see Jolley v State of New York, 106 Misc 2d 550; Favicchio v State of New York, 144 Misc 2d 212). A physician’s affidavit has not been included in the moving papers which is a well established requirement (see Colson v State of New York,115 Misc 2d 402; Schreck v State of New York, 81 AD2d 882; Matter of Edwards v State of New York, 119 Misc 2d 355, 357).
In conclusion, the majority of factors, including merit do not favor movant. Therefore, movant’s application to file a late claim is denied.

September 16, 2005
Hauppauge, New York

Judge of the Court of Claims

[1].The following papers have been read and considered on movant’s motion: Notice of Motion to File a Late Claim dated April 29, 2005 and filed June 30, 2005; Unsworn Affidavit in Support of a Motion of David Hughes with annexed Exhibits.