Jensley Georges alleges in his proposed claim that Defendant’s agents at
Downstate Correctional Facility failed to provide him with adequate and timely
dental treatment, causing him injury. More specifically, he alleges that on or
about January 4, 2006 after his right wisdom tooth was pulled, he was not given
antibiotics and thereafter suffered an infection, a swollen face, and pain and
swelling, as well as a fever. He alleges he was denied treatment for these
complaints on successive occasions on January 14, 2006 and January 17, 2006, and
was thereafter forced to change correctional facilities without ever receiving
treatment. Damages in the amount of
In support of his motion for late claim relief, Mr. Georges indicates that he
was unaware of the “short filing period,” and that because of his
incarceration, his five (5) transfers within the prison system, two (2)
hospitalizations, his limited ability to confer with counsel and lack of access
to legal references applicable in the Court of Claims he has been limited in his
ability to properly serve and file his claim. He asserts that he forgot to
serve a notice of intention upon the Attorney General by certified mail return
receipt requested. State employees, he alleges, were present during the
incident surrounding his claim, and reports were made with regard to the
incident by State personnel. Finally, he asserts that the State investigated the
incident, and he has no other remedy at law.
In her Affirmation in Opposition, the Assistant Attorney General indicates that
the copy of the motion papers served upon her office is not legible, that there
is no proposed claim attached, that the only reason advanced for late claim
relief is an inability to confer with counsel, and not all the required factors
have been addressed.
In order to determine an application for permission to serve and file a late
claim, the Court must consider, “among other factors,” the six
factors set forth in Court of Claims Act §10(6). The factors stated
therein are: (1) whether the delay in filing the claim was excusable; (2)
whether the State had notice of the essential facts constituting the claim; (3)
whether the State had an opportunity to investigate the circumstances underlying
the claim; (4) whether the claim appears meritorious; (5) whether substantial
prejudice resulted from the failure to timely serve upon the Attorney General a
claim or notice of intention to file a claim, and the failure to timely file the
claim with the Court of Claims; and (6) whether any other remedy is
The Court is afforded considerable
discretion in determining whether to permit the late filing of a claim. See
e.g. Matter of Gavigan v State of New York
, 176 AD2d 1117, 1118 (3d
Dept 1991). The presence or absence of any particular factor is not dispositive
Bay Terrace Coop. Section IV, Inc. v New York State Employees’
Retirement System Policemen’s & Firemen’s Retirement System
55 NY2d 979, 981 (1982); Broncati v State of New York
, 288 AD2d 172 (2d
Additionally, the motion must be timely brought in order to allow that a late
claim be filed “. . . 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 civil practice law and rules . . .” Court of Claims Act §
10(6). Here, the applicable statute of limitations - assuming a dental
malpractice claim - is two years and six months, thus the motion is timely
assuming a date of accrual of January 4, 2006. Civil Practice Law and Rules
A claim appears to be "meritorious" within the meaning of the statute if it is
not patently groundless, frivolous or legally defective and a consideration of
the entire record indicates 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 need not establish a prima
facie case at this point, but rather the appearance of merit. See
e.g. Jackson v State of New York, Claim No. None, M-64481 (Midey, J.,
February 28, 2002).
His mere incarceration, and movement within the system, and the asserted
difficulty in obtaining representation by counsel or otherwise conferring with
counsel, does not constitute a reasonable excuse in the nature of a disability,
or otherwise. See Plate v State of New York, 92 Misc 2d 1033,
1037-1039 (Ct Cl 1978). There must be some showing that the circumstances of
his incarceration prevented claimant from taking effective steps to perfect his
claim, or contact an attorney. Bommarito v State of New York, 35 AD2d
458, 459 (4th Dept 1971). Claimant has made no such showing, thus this factor
weighs against him.
Similarly, his claim of lack of knowledge of the law and an inability to retain
counsel do not constitute acceptable excuses. Innis v State of New York,
92 AD2d 606 (2d Dept 1983), affd, 60 NY2d 654 (1983); Musto v State of
New York, 156 AD2d 962 (4th Dept 1989).
The absence of an excuse, however, is but one of the factors to be considered,
and does not necessarily preclude relief. Bay Terrace Coop. Section IV, Inc.
v New York State Employees’ Retirement System Policemen’s &
Firemen’s Retirement System, supra.
The closely related factors of notice, opportunity to investigate and prejudice
to the State, considered together, weigh toward granting Claimant’s
motion. Any pictures or other documentation of the incident would presumably be
maintained by Defendant’s agents, The passage of time has not been so
great that the State’s ability to investigate is impeded to its prejudice.
cf. Edens v State of New York, 259 AD2d 729 (2d Dept 1999) (Two
years and two and one half months from date of accrual). Indeed, the
Assistant Attorney General acknowledges receiving a copy of a Notice of
Intention, although it was not served properly. Accordingly, these factors weigh
in favor of granting the motion.
As noted, Claimant need not establish his claim prima facie, but rather
show the appearance of merit. Jackson v State of New York, supra.
Claimant has not made the requisite showing of merit in order to permit late
filing of his claim.
When the proposed claim asserts a cause of action requiring an expert opinion
in order to be established, an affidavit of merit from a qualified expert should
be included with the application. Matter of Perez v State of New York
293 AD2d 918 (3d Dept 2002)
; Nyberg v State
of New York
, 154 Misc 2d 199, 202 (Ct Cl
; Favicchio v State of New York
144 Misc 2d 212, 214 (Ct Cl 1989)
; Jolley v
State of New York
, 106 Misc 2d 550, 551-552 (Ct Cl
; But cf. DePaolo v State of
, 99 AD2d 762 (2d Dept 1984).
Claimant has not appended copies of any dental or medical records, nor has any
affidavit by, for example, a dentist or other medical expert, been submitted to
explain those records.
In a dental/medical malpractice claim, the Claimant has the burden of proof and
must prove (1) a deviation or departure from accepted practice and (2) evidence
that such deviation was the proximate cause of the injury or other damage. A
cause of action is premised in medical malpractice when it is the medical
treatment, or the lack of it, that is in issue. A Claimant must establish that
the medical care giver either did not possess or did not use reasonable care or
best judgment in applying the knowledge and skill ordinarily possessed by
practitioners in the field. The “ ‘claimant must [demonstrate] . .
. that the physician deviated from accepted medical practice and that the
alleged deviation proximately caused his . . . injuries’ (Parker v
State of New York , 242 AD2d 785, 786).” Auger v State of New
York, 263 AD2d 929, 931 (3d Dept 1999). Without such medical proof, no
viable claim giving rise to liability on the part of the State can be sustained.
Hale v State of New York, 53 AD2d 1025 (4th Dept 1976), lv
denied, 40 NY2d 804 (1976). A medical expert’s testimony is
necessary to establish, at a minimum, the standard of care. Spensieri v
Lasky, 94 NY2d 231 (1999).
In this case, only the unsupported assertions of the Claimant have been
submitted in support of any claim of malpractice. No competent affidavit, by a
treating dentist or an expert witness whose opinion was based upon the available
medical records, has been submitted to support the allegation of malpractice.
There is no medical evidence on any medical issue and thus claimant has not
established the appearance of merit of his claim.
If a claim can be read to allege simple negligence then the alleged negligent
omissions or acts by the State’s employees can be readily determined by a
fact finder using common knowledge without the necessity of expert testimony.
Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, 256 (1st
Dept 1986). Similarly, the State may be found liable for ministerial neglect if
its employees fail to comply with an institution’s own administrative
procedures and protocols for dispensing medical care to inmates. Kagan v
State of New York, 221 AD2d 7, 10 (2d Dept 1996).
There is no indication that the actions of medical care givers amounted to
simple negligence or ministerial neglect. Coursen v New
York Hospital-Cornell Med. Center, supra; Kagan v State of
New York, supra; cf. Jacaruso v State of New York, Claim No.
97721 (Lebous, J., filed September 9, 2002). The claim cannot be read to assert
such theories, given that it inherently requires an assessment concerning the
adequacy and effect of the care provided.
Accordingly, Claimant’s motion for permission to serve and file a late
claim is hereby denied in all respects.