New York State Court of Claims

New York State Court of Claims

LENNON v. THE STATE OF NEW YORK, #2007-029-028, Claim No. None, Motion No. M-73411


Inmate’s late filing motion denied. No proof of inadequate medical diagnosis or treatment.

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:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Elyse J. Angelico, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 3, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


This is claimant’s motion for permission to file a late claim alleging that she was provided with inadequate medical care at Bedford Hills Correctional Facility. [1]

In support of the motion, claimant has submitted a proposed notice of intention to file a claim, which the court will treat as a proposed claim since Court of Claims Act § 10(6) requires that a copy of the “claim proposed to be filed” accompany any request for late filing relief. The statute grants the court the discretion to allow the filing of a late claim upon consideration of all relevant factors, including whether claimant’s delay was excusable, whether defendant had timely notice of and the opportunity to investigate the pertinent allegations, whether defendant would suffer substantial prejudice should late filing be allowed, whether the proposed claim has the appearance of merit and whether claimant has an alternate remedy.

Claimant, an inmate at Bedford Hills, alleges she fell on November 6, 2006 and sustained a fractured ankle and torn ligament. In her notice of intention, she describes various details of the medical attention she received over the ensuing two and a half months and expresses her opinion that such treatment was not proper, that there had been a “misdiagnosis” and that she suffered from defendant’s “delay” in providing proper treatment.

As defendant notes in opposition to the motion, whether a proposed claim has the appearance of merit is sometimes referred to as the most important of the statutory factors. In this regard, all that claimant has presented are her own opinions that the treatment rendered to her was insufficient and that proper treatment was not rendered until two and a half months had elapsed since the injury. Claimant’s opinions are insufficient for the court to make the required evaluation; “expert medical evidence clearly is required to demonstrate that the diagnosis and treatment rendered to claimant by state personnel departed from accepted medical practices and standards” (Matter of Perez v State of New York, 293 AD2d 918 [3d Dept 2002]). On the submitted papers, the court cannot find that the proposed claim has any appearance of merit whatsoever.

Claimant did not submit any papers other than the notice of intention and did not address most of the remaining statutory factors, rendering judicial analysis somewhat difficult. Significantly, claimant did not attach any medical records, leaving the court at a loss with respect to the notice, opportunity to investigate and lack of substantial prejudice factors. She refers to a “Dr. Gomphrect,” leaving open the possibility of a malpractice suit against the doctor, a possible alternate remedy (see Morell v Balasubramanian, 70 NY2d 297 [1987]).

On balance, and particularly in view of the complete absence of probative evidence indicating a potentially meritorious cause of action against the State of New York, the court finds that exercise of its discretion unwarranted and the motion is hereby denied.

August 3, 2007
White Plains, New York

Judge of the Court of Claims

[1].The court read and considered the Notice of Motion with attached Notice of Intention to File a Claim, and defendant’s Affirmation in Opposition with attached exhibit.