New York State Court of Claims

New York State Court of Claims

JACKSON v. THE STATE OF NEW YORK, #2007-029-001, Claim No. None, Motion No. M-72630


Inmate’s late filing motion denied without prejudice. A physician’s affidavit is necessary to evaluate merit of proposed claim.

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:
Defendant’s attorney:
ELIOT SPITZER, ATTORNEY GENERALBy: Elyse Angelico, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 10, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate at Bedford Hills Correctional Facility, seeks “reconsideration” of the court’s prior decision dated October 25, 2006 (M-72264, M-72299). [1] In that decision, the court denied two motions made by claimant: one seeking permission to amend a notice of intention she had served on defendant and the other seeking an extension of time in which to respond to defendant’s answer to the notice of intention. [2]

In denying claimant’s prior motions, the court pointed out that since claimant’s notice of intention was apparently served by regular mail, and since more than 90 days had elapsed since the accrual of her cause of action on April 19, 2006, the sole relief available to her would be leave to file a late claim pursuant to Court of Claims Act § 10(6).

As was recently written by Presiding Judge Sise in Williams v State of New York (Motion No. M-71757, UID No. 2006-028-590, October 17, 2006):
A Notice of Intention is not a pleading (Sega v State of New York, 246 AD2d 753 [3d Dept 1998]), and the Court of Claims Act, which authorizes and defines a Notice of Intention, provides no method for amending such a document. Furthermore, section 10(6) of the Court of Claims Act, which authorizes a motion for permission to file an untimely Claim, provides no comparable relief with respect to a Notice of Intention.
Claimant’s continued focus on her notice of intention is misplaced. The motion to reargue or renew the prior motion is denied, as claimant has identified no error in that decision nor any relevant fact or allegation that was not before the court.

Although claimant did not request permission to file a late claim, she did characterize the court’s prior decision and order as denying her permission to file a late claim (which was not requested) and she did attach a proposed claim, the gravamen of which is her allegation that on April 19, 2006, a Dr. Liacono – whom she alleges was an employee of the State of New York – performed a hysterectomy, during which he punctured her bladder.

Court of Claims Act § 10(6) grants the court discretion to allow the filing of a late claim, after consideration of all relevant factors, including reason for late filing, notice to the State, the opportunity to investigate, lack of substantial prejudice, availability of an alternate remedy and apparent merit of the proposed claim.

Here, it is apparent that a number of these factors would weigh in claimant’s favor. Claimant’s conceded timely service of her notice of intention did not serve to extend her filing period (because of the faulty service) but it did provide timely notice and the opportunity to investigate. That fact, combined with defendant’s possession of records and direct knowledge of her treatment by virtue of her status as an incarcerated inmate, would negate any claim of prejudice. Claimant’s allegation that she instructed correctional facility personnel to mail her notice of intention by certified mail, return receipt requested, would provide a reasonable excuse for her failure to meet the statutory 90-day deadline.

The proposed claim adequately sets forth a cause of action for medical malpractice, although it does not state the “place where” (i.e., the hospital) it accrued (Court of Claims Act §11[b]). Claimant correctly notes that she must show that an agent of defendant “deviated from the accepted practice” and that “such departure was a proximate cause of injury or damage” (Proposed Claim). The problem with claimant’s submission is nothing is provided from which the court could conclude that the proposed cause of action appears to be meritorious, a conclusion that requires, in these circumstances, an affidavit from a physician in support of the contention that there was a deviation from accepted medical practice that caused injury to claimant (see Wells v State of New York, 228 AD2d 581, 582, lv denied 88 NY2d 814; Prusack v State of New York 117 AD2d 729; Favicchio v State of New York, 144 Misc 2d 212; Jolley v State of New York, 106 Misc 2d 550).

Additionally, claimant would at least need to address the issue of whether the State of New York is responsible for the conduct of the allegedly-negligent surgeon (see Soltis v State of New York, 172 AD2d 919; Rivers v State of New York, 159 AD2d 788, lv denied 76 NY2d 701).

Accordingly, to the extent the motion seeks permission to file a late claim it is denied, without prejudice to a further motion seeking such relief made upon proper papers, including an affidavit from a physician.

January 10, 2007
White Plains, New York

Judge of the Court of Claims

[1].The court considered the Notice of Motion, “Affidavit” (unsworn) and Exhibits, including a Proposed Claim and defendant’s Affirmation in Opposition and Exhibits.
[2].Defendant mistakenly submitted an answer to the notice of intention, thinking it was a claim. In the “answer,” defendant pointed out that the notice of intention had been served by regular mail, a method of service not authorized by the Court of Claims Act.