New York State Court of Claims

New York State Court of Claims

WINFREY JR. v. THE STATE OF NEW YORK, #2006-032-021, Claim No. N/A, Motion No. M-70941


Synopsis



Case Information

UID:
2006-032-021
Claimant(s):
BENJAMIN WINFREY JR.
Claimant short name:
WINFREY JR.
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
N/A
Motion number(s):
M-70941
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Benjamin Winfrey, Jr., Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Michael C. Rizzo, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
March 20, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant moves this Court for leave to file a late claim alleging negligence, gross

negligence and "deliberate indifference". Defendant opposes this relief, arguing that claimant fails to allege an accrual date or establish that the proposed claim has merit.

In his proposed claim, claimant alleges that on an unspecified date while he was an inmate incarcerated at Clinton Correctional Facility, doctors prescribed pain medication. He further alleges that in September 2005, he experienced liver pain and that he has not received a liver scan to determine his source of pain. These allegations are indicative of a claim for medical negligence or medical malpractice.

To determine whether an application for permission to file a late claim should be granted, the claim must be timely under the applicable Statute of Limitations and consideration must be given to certain statutory factors. These factors are 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]). The last factor is the most decisive factor inasmuch as it is futile to proceed with a meritless claim. Further, to establish merit on a medical malpractice claim, a claimant must supply an expert affidavit of merit, or comparable proof, which alleges a deviation from accepted medical practice (compare Caracci v State of New York, 178 AD2d 876, 878 [3d Dept 1991]).

Here, even if the Court determines that the applicable limitations has not run on the proposed claim, late claim relief would not be warranted. There is no indication that defendant had notice of the essential facts, or an opportunity to investigate the underlying claim and, thus, defendant is substantially prejudiced. Claimant does have an alternative remedy inasmuch as he can file a CPLR article 78 proceeding after exhausting his administrative remedies to compel medical treatment. Finally, claimant fails to submit any medical proof and his conclusory assertions are insufficient to demonstrate the meritorious of his claim. As such, after balancing the six factors, the Court determines that leave to file a late claim is not warranted.

Accordingly, claimant's motion M-70941 for leave to file a late claim is denied.




March 20, 2006
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


Papers Considered:


1. Notice of Motion filed November 7, 2005;

2. Affidavit of Benjamin Winfrey Jr. sworn to October 25, 2005;

3. Proposed Claim;

4. Affidavit of Michael C. Rizzo filed December 14, 2005.