Movant brings a motion seeking permission to file a late claim pursuant to
Claims Act § 10(6). Defendant opposes the motion.
The proposed claim seems to assert both a cause of action for medical
malpractice and simple negligence. Although difficult to follow, it seems that
Movant was treated at the State University of New York Upstate Medical
University (hereinafter University Hospital) on April 5, 2004, for gunshot
wounds to both legs. Medication was prescribed for Movant at that time,
allegedly without a full explanation of the purpose of the prescription or
potential side effects. When Movant, an inmate, returned to Cape Vincent
Correctional Facility (hereinafter Cape Vincent) he began to experience, as he
describes, certain side effects from the medication, and the dosage was later
reduced by one of his treating physicians at University Hospital. Thereafter,
Movant complains that he began to suffer psoriasis and dermatitis on June 28,
2004, and a medicated cream was prescribed by the facility doctor, which he did
not receive for two days, and which he claims resulted in additional scarring.
On August 5, 2004, Movant signed a consent form to receive a "nerve block
injection" to alleviate some of the pain he was experiencing. On November 15,
2004, Movant received his first "nerve block injection" at University Hospital.
Additional medications were prescribed and Movant complains that the facility
doctor would not "issue the prior doctors [sic] prescribed" medications without
Movant next complains that the January 10, 2005, "nerve block injection" was
administered in the wrong position and, as a result, he suffered swelling in his
left knee for a week. Apparently on that same date, January 10, 2005, Movant
cursorily asserts that upon his transport back to Cape Vincent, given the state
of his legs and the leg irons, he did not have use of a "stepping block" to
assist him with access to the transport van, and as a result he fell and
suffered an injury. Movant also alleges that despite these "nerve block
injections" and different prescriptions he receives no relief from his pain and
discontinued the medications. He claims that an MRI performed on August 8,
2005, clearly shows his problems and ongoing pain. Movant now seeks permission
to file a claim against the State.
A proposed claimant who fails to timely file and serve a claim or serve a
notice of intention may be permitted, upon application and in the discretion of
the Court, to file a claim which complies with § 11 of the Court of Claims
Act, 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 CPLR (Court
of Claims Act § 10). The motion is timely (Court of Claims Act §
10; CPLR 214-a; 214).
To determine whether an application for permission to file a late claim should
be granted, consideration must be given to the six factors listed in Court of
Claims Act § 10(6), and any other relevant factors. The presence or
absence of any one factor is not determinative (Bay Terrace Cooperative
Section IV, Inc., v New York State Employees' Retirement System, Policemen's
and Firemen's Retirement System, 55 NY2d 979; Ledet v State of New
York, 207 AD2d 965). Instead, it is a balancing of all of the factors by
the Court which may warrant the granting of the application to file and serve a
Movant's excuse for the failure to timely serve a notice of intention or to
file and serve a claim in accordance with Court of Claims Act § 10 is that
on April 18, 2005, he filed a grievance regarding the medical treatment and care
he had received, and it was not until June 1, 2005, that he had exhausted all of
his administrative remedies. Movant is mistaken. There is no requirement that
his administrative remedies be exhausted before filing any claim other than one
for lost property. Since ignorance of the law is not an acceptable excuse, this
factor weighs against granting Movant's application (see Sevillia v State of
New York, 91 AD2d 792).
Turning to whether the State had notice, an opportunity to investigate the
facts underlying the proposed claim, or whether the State would suffer prejudice
if the application was granted, these factors being interrelated, will be
considered together. Movant states that the State had notice of the essential
facts relating to Movant's claim due to the "continuous pain and suffering" he
endured. He also indicates that the State investigated this matter (presumably
as part of his grievance) and therefore obtained actual notice of the facts
underlying his claim.
It is not clear that the State had timely notice of Movant's issues with his
various medical treatments. In any event, there are medical records available
to assist Defendant in preparing a defense and reconstructing events for
purposes of the medical malpractice claim minimizing any prejudice.
It does not appear from the submissions, that anyone in authority in the
Department of Correctional Services had notice of Movant's fall when attempting
to access the transport van allegedly because of the absence of a "stepping
block." Yet, Defendant makes no more than a conclusory assertion it lacks
notice, an opportunity to investigate, and will suffer prejudice if this
application is granted. No one with personal knowledge of the State's
recordkeeping system affirms the absence of a report of this incident or the
inability to investigate. The Court finds under these circumstances, these
factors weigh in Movant's favor.
The next factor, whether the claim appears to be meritorious, is referred to as
the most essential factor. Unlike a party who has timely filed a claim, 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). Generally a proposed claim meets this standard if
it is not patently groundless, frivolous, or legally defective, and upon
consideration of the entire record there is cause to believe that a valid cause
of action exists (Matter of Santana v New York State Thruway Authority,
92 Misc 2d 1, 11). The basis for the claim is twofold, medical malpractice and
the failure to provide a stepping block for Movant to access the transport van
on return from a hospital visit. Movant has failed to provide sufficient
information to permit this Court to determine that he has a potentially
meritorious medical malpractice cause of action. No expert medical affidavit
was provided asserting facts evidencing a meritorious cause of action (Colson
v State of New York, 115 Misc 2d 402) and no medical records were provided
which might permit this Court to determine in the absence of expert testimony
that the proposed claim is potentially meritorious (see DePaolo v State of
New York, 99 AD2d 762 [claimant's medical records established condition
which based upon the packaging literature of Motrin should have precluded the
use of the drug]). The Court is without the knowledge to determine whether the
prescriptions given and other treatment provided potentially deviated from the
standard of care (Schreck v State of New York, 81 AD2d 882; Colson,
115 Misc 2d at 402; Favicchio v State of New York, 144 Misc 2d 212).
Movant set forth minimally sufficient information for the Court to find that he
has a potentially meritorious cause of action for negligence based upon the
State failing to provide a stepping block for his access to the transport van.
Movant had leg problems and had leg irons on his legs at the time of his fall.
He has alleged minimally sufficient information to find reasonable cause to
believe a valid cause of action exists.
The final factor to be considered is whether Movant has any other available
remedy. Movant has no other remedy.
Upon balancing all of the factors in Court of Claims Act §10(6), this
Court DENIES Movant's motion as it relates to the portion of the proposed claim
seeking damages for medical malpractice without prejudice to making a new
application. The Movant shall be permitted to file and serve the proposed claim
only to the extent of his allegations that the State failed to provide him with
a "stepping block" to access the transport van on January 10, 2005. The claim,
as to that cause of action alone, and using the proper caption, shall be filed
and served in accordance with Court of Claims Act §§ 11 and 11-a
within 45 days of the date this Decision and Order is filed with the Clerk of