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
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.