New York State Court of Claims

New York State Court of Claims

SKINNER v. THE STATE OF NEW YORK, #2006-028-508, Claim No. 110686, Motion Nos. M-70080, CM-70387


Untimely claim is dismissed. Cross motion for late claim relief is granted where multiple actions arose out of the same event. Those actions that were timely commenced provided notice to the State and an opportunity to investigate, so Defendant would not be prejudiced by granting the requested relief. Although Claimant had no acceptable excuse for delay, he also has no remedy other than an action against the state and the proposed claim has sufficient appearance of merit.

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

Signature date:
January 11, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Defendant's motion for an order of dismissal and on Claimant's cross-motion for permission to file an untimely claim:

1. Notice of Motion and Supporting Affirmation of Joel L. Marmelstein, AAG, with annexed Exhibits

  1. Notice of Cross-Motion and Supporting Affirmation of Craig J. J. Snyder, Esq., with annexed Exhibits and Memorandum of Law
  1. Affirmation in Opposition to the Cross-Motion of Joel L. Marmelstein, AAG
  1. Reply Affirmation of Craig J. J. Snyder, Esq.

Filed papers: Claim

The claim in this action is alleged to have accrued on June 30, 2004, at Oneida Correctional Facility, when Claimant, an inmate of that facility, was directed to report to the health care unit in the facility to be tested for tuberculosis. The test to be given consisted of an intradermal injection of tuberculin purified protein derivative (PPD). The substance that was mistakenly injected into Claimant was TTCV, tetanus toxoid-containing vaccine, which is properly delivered by intramuscular injection. Claimant seeks to recover compensation for the pain and suffering, past and future, and for future medical expenses related to the damage done to his skin.

In lieu of an answer, counsel for Defendant has moved for an order dismissing the claim on the ground that it is untimely. In support of this motion, counsel has submitted a copy of the envelope in which the claim was received, showing that it was delivered – by certified mail, return receipt requested – on March 28, 2005 (Marmelstein affirmation, Exhibit B). Previously, on October 13, 2004, Claimant had served – again by certified mail, return receipt requested – a notice of intention to file a claim (id. Exhibit C). Inasmuch as the claim alleges a single cause of action based on the negligence of State employees that arose on June 30, 2004, either a notice of intention had to be served, or a claim had to be filed and served, within 90 days, or by September 28, 2004 (Court of Claims Act §10[3]). Claim No. 110686 was untimely and must be dismissed.

In recognition that compliance with the time requirements contained in the Court of Claims Act is a jurisdictional prerequisite to commencing an action in this Court (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]; Rodriguez v State of New York, 307 AD2d 657 [3d Dept 2003]), Claimant has cross-moved for permission to file an untimely claim pursuant to section 10(6) of the Court of Claims Act.

The cause of action being asserted by Claimant is subject to the three-year statute of limitations found in CPLR 214, and consequently the motion for permission to late file is timely. It is well-settled that in determining whether to grant such relief, a court must consider, among others, the following factors: 1) the delay in filing the claim was excusable, 2) the State had notice of the essential facts constituting the claim, 3) the State had an opportunity to investigate the circumstances underlying the claim, 4) the claim appears to be meritorious, 5) whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the State, and 6) if there is any other available remedy (see Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]; Matter of Gavigan v State of New York, 176 AD2d 1117, 1118 [3d Dept 1991]).

Claimant concedes that there is no acceptable excuse for the failure to comply with the time requirements of the Court of Claims Act, and defense counsel concedes that Claimant would have no remedy for any injury other than an action against the State. With respect to the interrelated factors of notice to Defendant, opportunity to investigate, and prejudice arising from the delay, the parties disagree. Claimant contends that the State is on full notice both of the underlying events and of the prospect of litigation as a result of 1) the inmate grievances filed by Claimant and five other inmates who received the TTCV injection and 2) the apparently timely-commenced claims brought by four of the affected inmates (Jolly v State of New York, Claim No. 110687; Di Nicola v State of New York, Claim No. 110688; Holder v State of New York, Claim No. 110691; and Perrara v State of New York, Claim No. 110759).[1]

Counsel for Defendant asserts that institutional grievances do not automatically satisfy the notice requirements of section 10(6) because they are not a sufficient predictor of litigation and that one Claimant may not simply "hitch a ride on another claimant's action," citing to Nyberg v State of New York (154 Misc 2d 199, 202 [Ct Cl 1992]). In Nyberg (supra), former Judge Donald J. Corbett, Jr., denied an application to late file a claim based on allegations of inadequate design at a certain intersection, despite the fact that notices of intention had been filed[2] by two other litigants, at least one of which set out the same theory of liability. Observing that "[t]he claims based upon those notices of intention will not have to meet the statutory prerequisite of the appearance of meritoriousness" that is placed on the litigant who seeks late claim relief, Judge Corbett held that without the benefit of expert opinion, the litigant who had failed to act in a timely fashion failed to establish the appearance of merit necessary to justify late claim relief under section 10(6). Thus, Nyberg stands for the proposition that there is no lesser standard with respect to merit when the proposed late claim mirrors a timely claim that will be heard in any event. When it comes to the issues of notice, opportunity to investigate and prejudice, however, the existence of timely-commenced claims arising from the same transaction and occurrence may legitimately play a critical and very helpful role to the tardy litigant.

While an inmate grievance, in and of itself, may not forecast litigation, the multiple grievances filed in connection with this incident actually caused an investigation to be carried out and, because the situation was sufficiently unusual, inevitably alerted authorities to the possibility that lawsuits might result. In response to the grievances commenced by Claimant and inmates Castro, Jolly, Di Nicola, and Holder (Snyder Affirmation, Exhibits B, C, D, E, and F), the grievances were accepted in part and the official response read as follows:
This grievance has been completely investigated. Oneida health staff acknowledge that on 6-30-04 select inmates were erroneously given a tetanus vaccine instead of PPD. The Facility Health Services Director stated there is no ill health consequences as a result. When health staff discovered the error all effected [sic] inmates were immediately called to medical for follow up and a full explanation was given to them. Appropriate administrative action has been taken. Further questions should be referred directly to medical staff.
Grievance is accepted only to the extent written above.

In this situation, therefore, both the several inmate grievances and the timely-filed claims arising out of the same event provided more than adequate notice and opportunity to Defendant, and granting the requested relief will not result in undue prejudice.

The final, and often the most important, factor is the apparent merit of the proposed claim. In the instant case, where correction officials are acknowledging the mistaken introduction of a toxoid-containing vaccine into the bodies of certain prison inmates, the allegations of negligence are to some extent already proven. Defense counsel argues that Claimant has provided little information about the nature or extent of his injuries, but that confuses the amount of damages, or degree of harm, with the facts relevant to liability. An applicant for late claim relief must establish not some quantum of damages but merely that the proposed claim
is "not patently groundless, frivolous, or legally defective" and "that there is reasonable cause to believe that a valid cause of action exists" (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
Claimant has successfully carried that burden.

Taking into account the six statutorily prescribed factors, the Court finds them to weigh in favor of granting Claimant's motion for permission to file a late claim. Claimant therefore is directed to file and serve a claim identical to the proposed claim, annexed as Exhibit A to the moving papers, and to do so in conformity with the requirements of Court of Claims Act §§ 10, 11 and 11-a within thirty (30) days of the date this Decision and Order is filed.

Defendant's motion is GRANTED and Claim No. 110686 is dismissed; Claimant's cross- motion is also GRANTED.

January 11, 2006
Albany, New York

Judge of the Court of Claims

[1] Another action, Perrara v State of New York (Claim No. 110372), was brought by several of the same Claimants but was discontinued by stipulation on July 18, 2005. The Court concludes that the above-named actions are timely because defense counsel has not moved for orders of dismissal, as he did in this action and four others (Castro v State of New York, Claim No. 110684; Alicea v State of New York, Claim No. 110685; Phillips v State of New York, Claim No. 110689; and Thorpe v State of New York, 110692).
[2]Nyberg v State of New York decision was issued in 1992, before Court of Claims Act § 11 was amended to dispense with the requirement that notices of intention be filed with the Court (L 1995, c 466).