New York State Court of Claims

New York State Court of Claims

NONE v. THE STATE OF NEW YORK, #2006-028-590, Claim No. None, Motion No. M-71757


Synopsis


Motion to late file claim based on allegations of medical malpractice is denied because the proposed pleading is defective and is not accompanied by a supporting affidavit from a physician.

Case Information

UID:
2006-028-590
Claimant(s):
CHARLES WILLIAMS
1 1.The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Claimant short name:
NONE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
none
Motion number(s):
M-71757
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant’s attorney:
LAW OFFICES OF MICHAEL S. LAMONSOFFBY: Anthony LaTrace, Esq.
Defendant’s attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Patrick F. MacRae, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 17, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Movant’s motion for permission to file an untimely claim:[2]

1. Notice of Motion and Supporting Affirmation of Anthony LaTrace, Esq., with annexed Exhibits


2. Affirmation in Opposition of Patrick F. MacRae, AAG, with annexed Memorandum of Law

In April 2005, Movant, who was then acting pro se, served a Notice of Intention to File a Claim on the Attorney General (LaTrace affirmation, Exhibit D). In this document, Movant alleged that on January 19, 2005, he ruptured his Achilles tendon while playing basketball at Mohawk Correctional Facility, that he was seen at an outside hospital but his ankle was not x-rayed at that time, and that he was not seen by an orthopedist until February 19, 2005. Following Movant’s release from prison, he acquired an attorney to represent him and this motion ensued.
As indicated (see footnote 2), the Notice of Motion states that the relief requested is permission to amend the Notice of Intention, citing both to a CPLR provision relating to amendment of pleadings and to section 10(6) of the Court of Claims Act. A Notice of Intention is not a pleading ( Sega v State of New York, 246 AD2d 753 [3d Dept 1998]), and the Court of Claims Act, which authorizes and defines a Notice of Intention, provides no method for amending such a document. Furthermore, section 10(6) of the Court of Claims Act, which authorizes a motion for permission to file an untimely Claim, provides no comparable relief with respect to a Notice of Intention. In the interest of judicial economy, however, this motion, will be construed as one brought pursuant to Court of Claims Act §10(6) and Movant’s “Proposed Amended Notice of Intention to File a Claim” will be deemed the Proposed Claim that must accompany such a motion.

This proposed pleading[3], which improperly adds the New York State Department of Correctional Services and the University Hospital of the State University of New York Health Science Center in Syracuse as named Defendants, alleges that during the period from January 19, 2005 until his release from prison on October 7, 2005, Movant was treated at the infirmary at Mohawk Correctional Facility and at the Health Science Center in Syracuse. It further alleges that these institutions were negligent in numerous ways – so many that it requires three complete pages - consisting of a single, unnumbered sentence - for counsel to list them all[4]. The few factual allegations that can be gleaned from this statement are that those treating Movant failed to diagnose his ruptured Achilles tendon; that they waited until March 3, 2005 before applying a cast; that they waited until February 19, 2005 before referring him to an orthopedist; that they waited until February 28, 2005 before performing an MRI of his right ankle; and that they failed or waited too long to perform a “Thomas test”.[5]

The papers submitted in support of the instant motion fail to discuss in any significant detail the statutory factors that must be addressed if permission to late file is to be granted: 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 (Court of Claims Act § 10 [6]).

Counsel’s affirmation and the supporting affidavit submitted by Movant (LaTrace affirmation, Exhibit B) both focus almost exclusively on the fact that correction officials were aware of Movant’s complaints of inadequate treatment because of a medical grievance that he instituted and on the assumed deficiencies of the Notice of Intention that had been served in April 2005. These include Movant’s failure to name additional Defendants (which is perceived to be an error) and the fact that Movant is not a physician and therefore was not qualified to certify the merits of this medical malpractice action under CPLR 3012-a (LaTrace affirmation, ¶ 11).[6]

Despite this acknowledgment that a certificate of merit must accompany claims asserting a cause of action for medical malpractice action and recognition that such a cause of action is being asserted here (id. ¶ 2), Movant’s counsel has not provided the Court with a certificate of merit, much less the requisite affidavit of a physician to “demonstrate that the diagnosis and treatment rendered to claimant by state personnel departed from accepted medical practices and standard” (Perez v State of New York, 293 AD2d 918 [3d Dept 2002]). Indeed, the only statement regarding merit comes from Movant himself, when he states in his affidavit (LaTrace affirmation, Exhibit B, ¶ 10) that he believes he has a meritorious cause of action “based on the fact that I was afforded improper care and treatment. . . .” This is not sufficient to establish that the claim has sufficient apparent merit to warrant the extraordinary relief of permission to late-file.

Because the moving papers are so flawed and insufficient, the instant motion must be DENIED, without prejudice to another motion for the same relief, one that is accompanied by a properly-pled proposed claim and adequate supporting papers.


October 17, 2006
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[2]. The Notice of Motion describes the motion as one for “an order pursuant to CPLR §3025 to amend a party’s pleadings and for permission to file an Amended Notice of Intention to File a Claim upon the Respondents (sic) pursuant to Section §10(6) of the Court of Claims Act.”
[3]. This document improperly lists as named Defendants “The State of New York, New York State Department of Correctional Services and University Hospital of the State University of New York Health Science Center at Syracuse.”
[4]. This document, therefore, fails to comply with the pleading requirements of CPLR 3013 and 3014.
[5]. The order in which these allegations are listed is the order in which they are recited in the proposed pleading.
[6]. CPLR 3012-a does not require a physician to certify the merits of a medical malpractice action but, rather, it requires that a certificate of merit be executed by an attorney who has consulted with a medical professional. In any event, this requirement applies only to complaints (or, in this Court, claims), not to Notices of Intention, and it is not applicable to litigants who are not represented by an attorney (CPLR 3012-a[f]).