New York State Court of Claims

New York State Court of Claims

CASTRO v. THE STATE OF NEW YORK, #2006-016-035, Claim No. None, Motion No. M-71377


Late claim motion was denied.

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):

Alan C. Marin
Claimant’s attorney:
Raymond Castro, Pro se
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: Carol A. Cocchiola, Esq., AAG
Third-party defendant’s attorney:

Signature date:
May 12, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Raymond Castro moves for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the “Act”). Mr. Castro’s proposed claim is for “deliberate indifference” in failing to provide proper medical care to him while he was incarcerated at Sullivan Correctional Facility. Specifically, he alleges that after he “twisted” his back on March 16, 2005, the Sullivan medical staff told him that x-rays taken at an outside hospital “did not show any injury to” his back. He further alleges that in August of 2005, he began to experience severe back pain and a second x-ray was taken. According to claimant, “[u]pon information and belief, the second x-ray . . . shows that I suffered inflammation and/or trauma to my back when I twisted my back, and that the inflammation and/or trauma caused a degenerative disc condition . . . Specifically, the doctor who reviewed the second x-ray of the claimant’s back reported that there is a degenerative change at disc space in my back. The doctor also reported that it was his impression that the degenerative condition ‘may’ be related to old trauma and/or inflammation.” See proposed claim, ¶¶10 and 11. Such is not based on any submitted physician’s affidavit or medical records (see below). Essentially, claimant maintains that the Sullivan medical staff should have “acknowledged the inflammation and/or trauma” to his back and began treating him immediately after the March 16, 2005 x-ray. He also complains that the Sullivan medical staff substituted a different medication for one prescribed by the outside hospital. In order to determine this motion, six factors enumerated in the Act must be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.[1]

With regard to notice, defendant concedes that it has access to claimant’s medical records. But if such were sufficient to impute notice for the purpose of the Act, that would mean that in any medical malpractice case, the notice factor would automatically be satisfied. See O’Shea v State of New York, Ct Cl filed November 5, 1999 (unreported, motion no. M-59853, Marin, J.), affd 278 AD2d 237, 717 NYS2d 293 (2d Dept 2000). The medical records do, however, offer an opportunity to investigate at this time, and defendant has pointed to no prejudice.

As to an alternate remedy, the sole appropriate venue is an action in this Court against the State of New York. With regard to excuse, claimant states that he did not know about the inflammation or trauma to his back until he received the result of his second x-ray in August of 2005. However, he fails to explain why he waited approximately six months after August of 2005 to file this motion on February 10, 2006 and accordingly, this factor is not satisfied.

The remaining factor to be considered is whether the proposed claim appears meritorious. Claimant has submitted no affidavit from a physician. There is authority that such is a condition precedent to a finding of merit on a late claim motion. See, e.g., Schreck v State of New York, 81 AD2d 882, 439 NYS2d 162 (2d Dept 1981); Favicchio v State of New York, 144 Misc 2d 212, 543 NYS2d 871 (Ct Cl 1989); and Jolley v State of New York, 106 Misc 2d 550, 434 NYS2d 122 (Ct Cl 1980). A number of appellate division cases have held that a medical affidavit is not necessary, but in such cases, claimants submitted medical records patently sufficient to show the appearance of medical malpractice. See Caracci v State of New York, 178 AD2d 876, 577 NYS2d 925 (3d Dept 1991); O’Shea, supra; and DePaolo v State of New York, 99 AD2d 762, 472 NYS2d 10 (2d Dept 1984). In the instant case, claimant has submitted no medical records and relies solely on his own affidavit. In view of the foregoing, claimant has failed to satisfy the merit factor.

Accordingly, having reviewed the parties’ submissions[2], IT IS ORDERED that motion no. M-71377 be denied.

May 12, 2006
New York, New York

Judge of the Court of Claims

  1. [1]See Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement Sys. Policemen’s and Firemen’s Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  2. [2]The Court reviewed: claimant’s notice of motion with affidavit in support and proposed claim; and defendant’s affirmation in opposition.