New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2007-030-520, Claim No. NONE, Motion No. M-72766


Synopsis


Late claim motion alleging medical malpractice denied. No proposed claim attached. No arguments advanced concerning the statutory factors for late claim relief. If the theory is that changing claimant’s medication caused him injury, this is not something that can be understood by a layperson, yet only the unsupported assertions of the claimant have been submitted in support of claim. No competent affidavit, by a treating physician or an expert witness whose opinion was based upon the available medical records submitted to support the allegations. Attaching medical records - all from the New York City Department of Corrections- without expert’s explanation and opinion that the required causation is present, does not establish the appearance of merit.

Case Information

UID:
2007-030-520
Claimant(s):
JOSH BROWN
1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
BROWN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-72766
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
JOSH BROWN, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: MARY B. KAVANEY, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
March 19, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read and considered on claimant’s motion for permission to


serve and file a late claim brought pursuant to Court of Claims Act §10(6):

  1. Motion for Permission to File a Late Claim by Josh Brown, Claimant
2,3 Notice of Motion; Affirmation in Opposition by Mary B. Kavaney, Assistant Attorney General and attached exhibit

  1. Letter to Court from Josh Brown received February 21, 2007 with attachments
Josh Brown alleges that in “September, 2005” medical personnel at Downstate Correctional Facility changed his medication without advising him, failed to direct that his medication be changed back upon his transfer to his next facility, and thus denied him adequate medical attention causing him to suffer pain, and “alcohol depression.” [Motion for Permission to File Late Claim, ¶¶ 1,2,3]. No separate, proposed claim is attached, nor has Mr. Brown appended an affidavit of merit from a physician. On the return date, additional papers were submitted by Mr. Brown attaching some of his medical records. [See Letter to the Court from Josh Brown received February 21, 2007].

In order to determine an application for permission to serve and file a late claim, the Court must consider, “among other factors,” the six factors set forth in §10(6) of the Court of Claims Act. The factors stated 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 serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; and (6) whether any other remedy is available.[2] The Court is afforded considerable discretion in determining whether to permit the late filing of a claim. See e.g. Matter of Gavigan v State of New York, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any particular factor is not dispositive. Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New York, 288 AD2d 172 (2d Dept 2001).

A copy of the proposed Claim[3], must accompany the motion, allowing the Court to ascertain the particulars of the claim, including the date of accrual, specific location of the alleged incident, and what injuries are alleged. See Court of Claims Act §11-b; Sinski v State of New York, 265 AD2d 319 (2d Dept 1999).

Additionally, the motion must be timely brought in order to allow that a late claim be filed “. . . at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules . . .” Court of Claims Act § 10(6). Here, the applicable statute of limitations - assuming a medical malpractice claim - is two and one-half (2 ½ ) years. Civil Practice Law and Rules §214-a. The date of accrual alleged is September 2005. Despite the lack of specificity the motion is timely.

A claim appears to be “meritorious” within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates that there is reasonable cause to believe that a valid cause of action exists. Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 (Ct Cl 1977). Claimant need not establish a prima facie case at this point, but rather the appearance of merit. See e.g. Jackson v State of New York, Claim No. None, Motion No. M-64481 (Midey, J., February 28, 2002).

Claimant has not attached a copy of his proposed claim, and the motion is therefore denied on that ground alone. More substantively, the claimant has not established entitlement to late claim relief based upon a review of all the required statutory factors.

Claimant has not really advanced any arguments concerning the statutory factors for late claim relief, except to say that personnel lied to him about his medication. His mere incarceration, and movement within the system, any difficulty in obtaining representation by counsel or otherwise conferring with counsel, does not constitute a reasonable excuse in the nature of a disability[4], or otherwise. See Plate v State of New York, 92 Misc 2d 1033, 1037-1039 (Ct Cl 1978). With respect to any impairment - the Court cannot help but note that there is some mention of psychiatric issues - more than a claimant’s statement that he was not in the right condition to pursue his claim is required - even in the context of a mental disability - in the form of medical records or a physician or psychiatrist’s affidavit. See Cabral v State of New York, 149 AD2d 453 (2d Dept 1989)[5]; Goldstein v State of New York, 75 AD2d 613, 614 (2d Dept 1980)[6]. There must be some showing that the circumstances of his incarceration prevented claimant from taking effective steps to perfect his claim within ninety (90) days of its accrual, [see generally Court of Claims Act §10(3)], or contact an attorney. Bommarito v State of New York, 35 AD2d 458, 459 (4th Dept 1971). Claimant has made no such showing, thus this factor weighs against him.

The absence of an excuse, however, is but one of the factors to be considered, and does not necessarily preclude relief. Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, supra.

The closely related factors of notice, opportunity to investigate and prejudice to the State, considered together, are fairly neutral here, and somewhat weigh toward granting Claimant’s motion. It has been nearly two (2) years since the change in medication claimant alleges caused his injury, thus the State’s ability to investigate is somewhat impeded to its prejudice by the passage of time alone, yet with medical records available it would not be impossible. Edens v State of New York, 259 AD2d 729 (2d Dept 1999) (Two years and two and one-half months from date of accrual).

The appearance of merit is viewed as the most important factor to consider in an application to serve and file a late claim. When the proposed claim asserts a cause of action requiring an expert opinion in order to be established, an affidavit of merit from a qualified expert should be included with the application. Perez v State of New York, 293 AD2d 918 (3d Dept 2002)[7]; Schreck v State of New York, 81 AD2d 882 (2d Dept 1981)[8]; Favicchio v State of New York, 144 Misc 2d 212, 214 (Ct Cl 1989)[9]; Jolley v State of New York, 106 Misc 2d 550, 551-552 (Ct Cl 1980)1[0]; But c.f. DePaolo v State of New York, 99 AD2d 762 (2d Dept 1984).1[1] In some senses, a late claim applicant has a higher burden than one who has timely served and filed his claim. Nyberg v State of New York, 154 Misc 2d 199, 202-203 (Ct Cl 1992).1[2]

In a medical malpractice claim, the Claimant has the burden of proof and must prove (1) a deviation or departure from accepted practice and (2) evidence that such deviation was the proximate cause of the injury or other damage. A cause of action is premised in medical malpractice when it is the medical treatment, or the lack of it, that is in issue. A Claimant must establish that the medical caregiver either did not possess or did not use reasonable care or best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field. The “ ‘claimant must [demonstrate] *** that the physician deviated from accepted medical practice and that the alleged deviation proximately caused his . . . injuries’ (Parker v State of New York , 242 AD2d 785, 786).” Auger v State of New York, 263 AD2d 929, 931 (3d Dept 1999). Without such medical proof, no viable claim giving rise to liability on the part of the State can be sustained. Hale v State of New York, 53 AD2d 1025 (4th Dept 1976), lv denied, 40 NY2d 804 (1976). A medical expert’s testimony is necessary to establish, at a minimum, the standard of care. Spensieri v Lasky, 94 NY2d 231 (1999).

In this case, only the unsupported assertions of the claimant have been submitted in support of any claim of malpractice. No competent affidavit, by a treating physician or an expert witness whose opinion was based upon the available medical records, has been submitted to support the allegation of medical malpractice. Merely attaching some medical records - from the New York City Department of Corrections and the Department of Correctional Services [see Letter to Court from Josh Brown, received February 21, 2007] - without an explanation from a qualified expert opining that the required causation is present, does not establish the appearance of merit. See Perez v State of New York, supra. If the theory is that changing his medication caused claimant injury, this is not something that can be understood by a layperson. There is no medical evidence on any medical issue and thus claimant has not established the appearance of merit of his claim.

“[W]hen the excuse offered for the delay is inadequate and the proposed claim is of questionable merit . . . (citations omitted)” the Court appropriately exercises its discretion to deny an application for late claim relief. Perez v State of New York, supra at 919; see also Matter of Gonzalez v State of New York, 299 AD2d 675 (3d Dept 2002).

Accordingly, and after having carefully considered the relevant statutory factors, the Court finds that the balance of factors weigh against Claimant, and it is therefore

ORDERED, that Claimant’s application for permission to serve and file a late claim is in all respects DENIED.

March 19, 2007
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[2]. The Defendant has not opposed the motion on the ground of availability of another remedy, therefore this factor is presumed to weigh in claimant’s favor. Cole v State of New York, 64 AD2d 1023, 1024 (4th Dept 1978)[“Although the State argues in this appeal that claimant's inference of notice to it is based on equivocal facts, it filed no affidavit with the court claiming either prejudice or lack of notice. When answering affidavits are not produced, the facts alleged in the moving affidavits will be taken by the court as true . . .(citations omitted).”]
[3]. Court of Claims Act § 10(6) states in pertinent part: “. . . The claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application . . . ”
[4].Court of Claims Act §10(5) provides that a claimant under a “legal disability” may present a claim two (2) years after such disability is removed. The traditional legal disabilities of infancy, incompetency or insanity are what is contemplated. See Civil Practice Law and Rules§208. Claimant has not shown how he is unable to protect his legal rights.
[5]. “The only excuse offered in support of the contention that the delay was excusable was a conclusory assertion by the claimant’s counsel, unsupported by a physician’s affidavit, that the claimant’s alleged hospitalization at some undisclosed time delayed her from contacting an attorney, and that the claimant had no knowledge of the 90-day statutory filing requirement.”
[6]. “Although claimant alleged she was either hospitalized or convalescing for the entire period during which she could have timely filed the claim, such alleged incapacity is inadequate as an excuse for late filing without either a physician’s affidavit or hospital records . . . citation omitted).”
[7]. In proposed claim alleging that the misdiagnosis and inadequate treatment of a cancerous ulceration on his leg resulted in deformity and permanent injury, medical records alone insufficient in support of late claim motion. Expert medical evidence was required to show that the alleged inadequate treatment of ulcer was inadequate in the first instance, and that the ulcer was cancerous when examined, and how such failures are linked to the damages suffered.
[8]. Court of Claims abused discretion in allowing late claim to be filed in claim alleging medical malpractice where no affidavit by medical expert causally linking birth of brain damaged child to asserted malpractice submitted.
[9]. Opinion by medical expert without underlying basis for it - in this case the medical records the physician indicated he had reviewed - insufficient to establish appearance of merit in late claim motion.
1[0]. An attorney’s affirmation by one experienced in medical malpractice litigation is not competent to establish the appearance of merit in application to file late claim alleging medical malpractice. Court did not rely on any other late claim factors in making determination to deny motion.
[1]1. Denial of inmate’s motion to file late claim abuse of discretion where medical records furnished established that he suffered from the medical conditions that the Motrin packaging literature advised precluded prescription of the drug, in a claim alleging medical malpractice based upon physician’s allegedly improper direction that inmate take Motrin. No medical affidavit needed to be furnished under these circumstances.
1[2]. Late claim applicant has higher burden than one who has timely filed a claim. Need opinion by qualified person to establish appearance of merit in claim alleging negligence based upon the absence of a highway median.