New York State Court of Claims

New York State Court of Claims

MARQUEZ v. THE STATE OF NEW YORK, #2007-009-042, Claim No. NONE, Motion No. M-73500


Synopsis


Claimant’s motion seeking permission to serve and file a late claim was denied, due in part to claimant’s failure to submit and affidavit from a medical expert.

Case Information

UID:
2007-009-042
Claimant(s):
JUAN MARQUEZ
Claimant short name:
MARQUEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-73500
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
JUAN MARQUEZ, Pro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Thomas M. Trace, Esq.
Senior Attorney,Of Counsel.
Third-party defendant’s attorney:

Signature date:
December 13, 2007
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant, an inmate proceeding pro se, has brought this motion seeking permission to serve and file a late claim.[1]

The following papers were considered by the Court in connection with this motion:
Notice of Motion, with Attachment 1


Response, with Exhibits 2

Reply, with Exhibits 3


Filed Papers: Claim No. 114046.

As set forth in the motion papers, claimant alleges that in September 2005, while incarcerated at Mid-State Correctional Facility, he was required to undergo an unnecessary surgical procedure in which a venous port was implanted in his chest. Claimant further alleges that the port was never utilized for any purpose by medical personnel, and it was then surgically removed approximately one year later, on or about September 20, 2006.

In order to determine an application for permission to serve and file a late claim, the Court must consider, among other relevant factors, the six factors set forth in § 10(6) of the Court of Claims Act. The factors set forth 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 file and the failure to serve upon the Attorney General a timely claim or notice of intention to file a claim; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim (see Matter of Gavigan v State of New York, 176 AD2d 1117), and the presence or absence of any particular factor is not dispositive of any such application (Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979).

With regard to excuse, claimant relies upon the continuous treatment doctrine set forth in CPLR § 214-a. He further alleges that he was required to undergo this unnecessary procedure before he would become eligible to receive any medical treatment for his hepatitis type C. This application, however, was not instituted until May 2007, and the venous port, by claimant’s own admission, was removed in September 2006. Claimant has failed to provide any excuse for his failure to institute his claim within 90 days of the removal of the implant, and provides no evidence to establish that the continuous treatment doctrine would be applicable once the implant had been removed.

For these reasons, therefore, the Court finds that claimant has not provided a reasonable excuse for his failure to serve and file a claim within 90 days of the removal of the implant in September 2006.

The factors of notice, opportunity to investigate, and substantial prejudice will be considered together. Although the Court assumes that the surgical procedure performed on claimant is well documented through medical records, claimant has provided no indication in his moving papers that the State had actual notice of a potential claim, or any opportunity to investigate the circumstances underlying the claim, prior to this motion. The presumed existence of medical records, however, does provide the State with an adequate opportunity to defend this claim, and the Court finds that the State will not be substantially prejudiced in its defense of this claim should this application be granted.

The next factor, often deemed the most critical, is whether the proposed claim has the appearance of merit. If claimant cannot establish a meritorious claim, it would be an exercise in futility to grant a late claim application (Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729). 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 that there is reasonable cause to believe that a valid claim exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1). When a proposed claim alleges medical malpractice, the application must generally be supported by an affidavit from a medical expert, setting forth an opinion that defendant’s actions departed from the accepted standard of care, and that the alleged deviation proximately caused his injuries (Matter of Robinson v State of New York, 35 AD3d 948; Rosario v State of New York, 8 Misc 3d 1007[A]; Matter of Perez v State of New York, 293 AD2d 918).

In this matter, claimant has not submitted any such expert affidavit, and the Court is unable to determine, based upon its review of the papers submitted herein, that a meritorious claim of medical malpractice exists. Claimant has therefore failed to establish that this claim has the appearance of merit.

From the papers submitted, it does not appear that claimant has another available remedy. After reviewing all of the papers submitted herein, and after weighing and considering all of the factors set forth under Court of Claims Act §10(6), it is the opinion of this Court that claimant should not be allowed to serve and file his proposed claim.

The Court further notes that after instituting this motion, claimant submitted a claim to both the defendant and the Clerk of the Court of Claims, based upon the same allegations as contained in this motion seeking permission to serve and file a late claim. This claim was accepted for filing by the Clerk of the Court of Claims, and has been assigned Claim No. 114046. In accordance with prior correspondence from this Court to both claimant and defendant’s attorney, defendant shall have 40 days from the filing date of this decision and order to either interpose an answer or move against that claim.

Accordingly, it is

ORDERED, that Motion No. M-73500 is hereby DENIED.


December 13, 2007
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[1]. In his motion, claimant actually seeks permission to serve a late notice of intention to file a claim. However, § 10(6) of the Court of Claims Act, the statute providing for late claim relief, only authorizes a motion for permission to serve and file an untimely claim, and provides no such relief with respect to a notice of intention (Williams v State of New York, Ct Cl, Sise, P.J., Motion No. M-71757, UID No. 2006-028-590, October 17, 2006). This Court in its discretion, has therefore considered this motion as one seeking permission to serve and file a late claim under § 10(6). Unpublished decisions and selected orders of the Court of Claims are available via the Internet at http://www.nyscourtofclaims.state.ny.us/decisions.