New York State Court of Claims

New York State Court of Claims

ESPINOZA v. THE STATE OF NEW YORK, #2006-009-065, Claim No. NONE, Motion No. M-71783


Claimant’s application for permission to serve and file a late claim was denied, due in part to claimant’s failure to submit an affidavit of merit from a medical expert.

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:
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
November 21, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this motion seeking permission to serve and file a late claim pursuant to Court of Claims Act § 10(6).

The following papers were considered by the Court in connection with this motion:
“Motion for Permission to File a Late Claim”, Proposed “Notice of Intention to File Claim” 1,2

Affirmation in Opposition 3

In his proposed claim (see Item 2)[1], claimant contends that after breaking his right wrist while exercising at Mid-State Correctional Facility on December 6, 2005, he remained in the prison hospital for approximately five hours before he was taken to University Hospital in Syracuse, New York for treatment. Claimant seeks damages for this delay in providing him medical treatment for his broken wrist.

In order to determine an application for permission to serve and file a late claim, the Court must consider, among other relevant factors, the six factors set forth in § 10(6) of the Court of Claims Act. The factors set forth 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 file and the failure to serve upon the Attorney General a timely claim or notice of intention to file a claim; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim (see Matter of Gavigan v State of New York, 176 AD2d 1117). The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979).

With regard to excuse, claimant states that he was not aware that he could file a claim against the State, and that since he was incarcerated, he did not know any attorney who would be willing to take this case for him. It is well settled, however, that ignorance of the law is not a reasonable excuse (Innis v State of New York, 92 AD2d 606, aff’d 60 NY2d 654; Erca v State of New York, 51 AD2d 611, affd 42 NY2d 854), and incarceration, in and of itself, also does not constitute a sufficient excuse (Plate v State of New York, 92 Misc 2d 1033). The Court therefore finds that claimant has not presented an acceptable excuse for his failure to timely serve and file a claim.

The factors of notice, opportunity to investigate, and substantial prejudice will be considered together. Claimant contends that the State had notice of the essential facts constituting the claim since medical personnel at Mid-State Correctional Facility failed to provide adequate or timely medical care to him. The Court, however, while unable to follow the logic of claimant’s argument, finds that claimant’s allegations of a failure to timely provide treatment for his broken wrist does not equate to the type of notice that would alert the State to a potential lawsuit. Furthermore, claimant has presented no argument that the State had any sufficient opportunity to investigate the facts and circumstances surrounding this potential claim.

Notwithstanding these findings that the State did not have notice or an opportunity to investigate, however, the Court is of the opinion that sufficient medical records exist which would provide the State with an adequate basis on which to defend this claim, if permission were to be granted. Accordingly, even though claimant has not established that the State had notice of the essential facts constituting the claim or an opportunity to investigate, the Court finds that the State would not be substantially prejudiced should it have to defend this claim. The next factor, often deemed the most critical, is whether the proposed claim has the appearance of merit. If claimant cannot establish a meritorious claim, it would be an exercise in futility to grant a late claim application (Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729). In order to establish a meritorious cause of action, claimant has the burden to show that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1). Unlike a party who has timely filed a claim, however, one seeking permission to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199).

An application for permission to file a late claim sounding in medical malpractice generally requires further support in the form of an expert’s affidavit of merit, since a Court may determine the potential merit of a proposed claim only through an affidavit from someone who has the qualifications to allege a deviation from generally accepted medical standards (Schreck v State of New York, 81 AD2d 882; Jolley v State of New York, 106 Misc 2d 550).

In this case, claimant has not submitted any such affidavit of merit from a medical expert, nor has he even submitted any medical records in support of his proposed claim. Claimant has merely set forth his own allegations and conclusory statements that he was denied medical care for approximately five hours after falling and breaking his wrist. Specifically, claimant has failed to submit any medical evidence to suggest that this alleged delay in treatment was unreasonable or avoidable, or that the alleged delay compounded or contributed to the injuries suffered by him when he fell. Without such supporting medical evidence, the Court finds that claimant has failed to establish the appearance of merit in his proposed claim.

Finally, it does not appear that claimant has any other available remedy.

Accordingly, after a review of the papers submitted herein, and after weighing and considering all of the factors set forth under Court of Claims Act § 10(6), it is the opinion of this Court that claimant should not be allowed to serve and file his proposed claim.

Accordingly, it is

ORDERED, that Motion No. M-71783 is hereby DENIED.

November 21, 2006
Syracuse, New York

Judge of the Court of Claims

[1]. Claimant has identified this paper as a “Notice of Intention to File Claim”, but for purposes of this application, the Court has considered this document as claimant’s proposed claim.