New York State Court of Claims

New York State Court of Claims

CLAY v. THE STATE OF NEW YORK, #2006-032-057, Claim No. N/A, Motion No. M-71283


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:
Daniel Clay, Pro Se
Defendant’s attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Ross N. Herman, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
July 10, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves this Court for permission to file a late claim alleging acts of medical

malpractice. Defendant opposes the application and argues that the proposed claim lacks merit.

The proposed claim states that the claim arises as a result of the failure of a doctor and a physician assistant at Rikers Island Correctional Facility to diagnose and treat claimant for an abnormal lab report in April 2005. Specifically, on April 5, 2005, claimant requested a blood test at Rikers Island. Although the blood test showed readings within normal limits, claimant did not trust the reliability of the test and requested another blood test on April 29, 2005, while he was at Downstate Correctional Facility. This report showed that claimant's bilirubin had increased from .5 to 1.3 and was over the normal range of 1.0. Claimant states that while he was at Rikers Island, he was seen by a physician assistant because he was fatigued, weak and exhibited dark circles under his eyes. Claimant states that he notified the physician assistant about the two lab results and the physician assistant failed to properly diagnose and treat claimant. He further alleges that a few weeks later he was seen by a doctor at Rikers Island, who similarly took no action regarding the blood tests.

To determine whether an application for permission to file a late claim should be granted, consideration must be given to 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 (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]). In order to establish a meritorious cause of action, claimant has the burden to show that the proposed claim is not patently groundless, frivolous, or legally defective, and the Court must find, upon a consideration of the entire record (including the proposed claim and any affidavits or exhibits) that there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Authority, 92 Misc2d 1 [1997]). 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, claimant fails to submit any medical proof and his conclusory assertions are insufficient to demonstrate the meritorious of his claim. Further, the gravamen of his claim concerns care that he received at Rikers Island, a facility operated by the City of New York

(see Huang v Johnson 96 NY2d 599, 601 [2001]), and, thus, not within this Court's jurisdiction (see Court of Claims Act §9). Thus, the Court need not consider the remaining factors as it is futile to grant leave to a meritless claim (see e.g. Savino v State of New York, supra).

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

July 10, 2006
Albany, New York

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion filed February 10, 2006;

2. Affidavit of Daniel Clay sworn to January 31, 2006; Exhibits 1,A-S annexed;

3. Affirmation of Ross N. Herman filed March 9, 2006.