New York State Court of Claims

New York State Court of Claims

CLAY v. THE STATE OF NEW YORK, #2006-032-069, Claim No. N/A, Motion No. M-71542


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: Michael C. Rizzo, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
August 1, 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 is untimely and lacks merit.

The proposed claim states that beginning in February 2001, medical personnel at Clinton Correctional Facility failed to diagnose and properly treat a thyroid condition. The claim alleges that the ailment went undiagnosed until May 2003. In support of his allegations, claimant submits selected portions of his medical records indicating that he sought treatment twice for fatigue and dark circles between February 2001 and March 2001. The records indicate that hepatitis was suspected and a series of blood work was ordered in March 2001, June 2001, July 2001, September 2001, October 2001, December 2001, January 2002 and February 2002. Claimant does not submit any medical records between March 2001 and February 2002 that complain of fatigue or dark circles. Claimant‛s medical records state that he again complained of fatigue twice in April 2003, and thereafter received a diagnosis in May 2003 of a thyroid problem. The records are unclear as to whether claimant was diagnosed with hepatitis.

In determining whether an application for permission to file a late claim should be granted, the Court must determine whether the claim would be timely under the applicable Statute of Limitations and then consider 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 (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]).

Although claimant alleges that his claim is governed by a three-year limitations period, an action for medical malpractice must be commenced within 2 ½ years of the date of accrual (CPLR 214-a). A claim generally accrues on the date of the alleged wrongful act or omission (see Nykorchuck v Henriques, 78 NY2d 255, 258 [1991]). Here, claimant first sought treatment in February 2001. Thus, under ordinary circumstances, his claim would be time-barred because he failed to file a claim within 2 ½ years, or before August 2003. Under the doctrine of continuous treatment, however, the time is tolled until a claimant's last treatment “ ‘when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint’ ” (McDermott v Torre, 56 NY2d 399, 405, quoting Borgia v City of New York, 12 NY2d 151, 155). It is claimant‛s burden to establish that the doctrine of continuous treatment is applicable (see White v Murphy, 277 AD2d 852, 853 [3d Dept 2000]). Claimant fails to argue that this doctrine applies and tolls the limitations period. He states only that his claim accrued on May 15, 2003, the date that he received his thyroid diagnosis. Even if the Court were to determine that the doctrine of continuous treatment tolls the limitation period, the Court would nonetheless deny claimant‛s application because he fails to establish that the claim has the appearance of merit.

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]). Claimant fails to attach an expert affidavit or other evidence alleging that prison medical personnel departed from acceptable medical care. Although claimant provides selected portions of his medical records, these records, and his conclusory allegations, are insufficient to make the requisite showing.

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

August 1, 2006
Albany, New York

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion filed April 3, 2006;

2. Affidavit of Daniel Clay sworn to March 16, 2006;

3. Proposed Claim - Exhibits K-Z annexed;

4. Affidavit of Michael C. Rizzo filed April 12, 2006.