New York State Court of Claims

New York State Court of Claims

Johnson v. STATE OF NEW YORK, #2006-018-508, Claim No. NONE, Motion No. M-70645


Movant's request to file a late claim is granted on the negligence cause of action and denied on the medical malpractice cause of action.

Case Information

MELVIN JOHNSON The Court has amended the caption, sua sponte, to reflect the State of New York as the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has amended the caption, sua sponte, to reflect the State of New York as the only proper defendant.
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 of the State of New York
By: Heather R. Rubinstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 24, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Movant brings a motion seeking permission to file a late claim pursuant to Court of

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 explanation.

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[6]). The motion is timely (Court of Claims Act § 10[6]; CPLR 214-a; 214[5]).

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 late claim.

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 the Court.

January 24, 2006
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

Notice of Motion...................................................................................................1

Affidavit of Melvin Johnson, sworn to August 17, 2005, in support, with

exhibit attached thereto..............................................................................2

Affirmation of Heather R. Rubinstein, Esquire, Assistant Attorney General

in opposition...............................................................................................3