New York State Court of Claims

New York State Court of Claims

GEORGES v. THE STATE OF NEW YORK, #2006-030-564, , Motion No. M-71660


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:
Third-party defendant’s attorney:

Signature date:
August 28, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 4 were read and considered on Claimant’s motion for permission to serve and file a late claim brought pursuant to Court of Claims Act §10(6):
1-3 Notice [of Motion]; [Affidavit in Support] by Jensley Georges, Claimant; [proposed] Claim[1]

  1. Affirmation in Opposition by Mary B. Kavaney, Assistant Attorney General and attached exhibit
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 “$700,500"[2] are sought.

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 available.[3] 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 Dept 2001).

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 § 214-a.

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)[4]; Nyberg v State of New York, 154 Misc 2d 199, 202 (Ct Cl 1992)[5]; Favicchio v State of New York, 144 Misc 2d 212, 214 (Ct Cl 1989)[6]; Jolley v State of New York, 106 Misc 2d 550, 551-552 (Ct Cl 1980)[7]; But cf. DePaolo v State of New York, 99 AD2d 762 (2d Dept 1984).[8] 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.

August 28, 2006
White Plains, New York

Judge of the Court of Claims

[1]. All the documents submitted except the Claim and an attached Verification are untitled, but what is intended can be interpreted from the documents themselves.
[2]. The handwriting is not clear.
[3]. The Defendant has not opposed the motion on the ground of availability of another remedy, therefore this factor is presumed to weigh in claimant’s favor. Cole v State of New York, 64 AD2d 1023, 1024 (4th Dept 1978)[“Although the State argues in this appeal that claimant's inference of notice to it is based on equivocal facts, it filed no affidavit with the court claiming either prejudice or lack of notice. When answering affidavits are not produced, the facts alleged in the moving affidavits will be taken by the court as true . . . (citations omitted).”]
[4]. Inmate’s failure to establish merits of medical malpractice claim through expert medical evidence warranted denial of late claim motion where he claimed mis-diagnosis and ineffectual treatment of cancer exacerbated his condition. A layperson alone could not say whether treatment deviated from accepted standards of care.
[5]. Need opinion by qualified person to establish appearance of merit in claim alleging negligence based upon the absence of a highway median; late claim applicant has higher burden than one who has timely filed a claim.
[6]. Opinion by medical expert without underlying basis for it - in this case the medical records the physician indicated he had reviewed - insufficient to establish appearance of merit in late claim motion.
[7]. An attorney’s affirmation by one experienced in medical malpractice litigation is not competent to establish the appearance of merit in application to file late claim alleging medical malpractice. Court did not rely on any other late claim factors in making determination to deny motion.
[8]. Denial of inmate’s motion to file late claim abuse of discretion where medical records furnished established that he suffered from the medical conditions that the Motrin packaging literature advised precluded prescription of the drug, in a claim alleging medical malpractice based upon physician’s allegedly improper direction that inmate take Motrin. No medical affidavit needed to be furnished under these circumstances.