Woody Jean-Charles alleges in his proposed claim that the defendant’s
agents at Green Haven and Sing Sing Correctional facilities failed to diagnose
and properly treat his infection with the Hepatitis-B virus from December 1995
until January 6, 2006, and that such delayed diagnosis and or delayed notice of
his diagnosis caused him harm. More specifically he alleges that “[u]pon
information and belief, Defendant’s failure to treat and/or monitor
Claimant’s detected infection in 1995/1996, resulted in further damage to
Claimant’s liver which was detected in 2004, and required a toxic
treatment regimen in 2006.” [Proposed Claim, ¶19]. Because he was not
given earlier notice of his infection, he claims he could not “tak[e]
measures to forestall the worsening of the condition . . . ”
[Ibid. ¶15]. Damages in the total amount of four million
($4,000,000.00) dollars are sought.
In support of his motion for late claim relief, Mr. Jean-Charles states he
became “aware of the incident(s) underlying the claim on January 6,
2006,” thus “[u]nder provisions of Article 2 of the Civil Practice
Law and Rules . . . [he] would not be barred from asserting a like claim against
a citizen of the State. [See Affidavit in Support of Motion for
Permission to File a Late Claim by Woody Jean-Charles, ¶ 1], He asserts
that the delay in filing the claim is excusable because he is not a lawyer and
had no access to legal counsel. Moreover, he asserts that he is
“. . . under continuous treatment from Defendant for the condition caused
by Defendant’s malpractice and negligence.” [Ibid. ¶2].
He states he has no other remedy. Finally, he states that defendant has notice
of the underlying facts because he filed a grievance on January 25, 2006 which
was denied by the Central Office Committee on March 8, 2006. [See ibid.
Exhibits A, B and C].
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
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
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. If the accrual date is measured from when claimant
asserts he was first notified of his medical condition on January 6, 2006, the
motion is timely; if it is measured from the initial failure to notify claimant
and or misdiagnosis or mistreatment in 1995 or 1996, it is clearly not timely
unless estoppel principles of some type apply, or a theory of continuous
treatment. For more substantive purposes, it will be presumed that the motion
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.
His mere incarceration, and movement within the system, and the asserted
difficulty in obtaining representation by counsel or otherwise conferring with
counsel, does not constitute a reasonable excuse in the nature of a disability,
or otherwise [see Plate v State of New York, 92 Misc 2d 1033,
1037-1039 (Ct Cl 1978)] nor does a claim of lack of knowledge of the law.
Innis v State of New York, 92 AD2d 606 (2d Dept 1983), affd, 60
NY2d 654 (1983); Musto v State of New York, 156 AD2d 962 (4th Dept 1989).
There must be some showing that the circumstances of his incarceration prevented
claimant from taking effective steps to perfect his claim, 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, weigh marginally toward granting
claimant’s motion. Any medical records or other documentation of the
treatment afforded to claimant would presumably be maintained by
defendant’s agents, as part of the function of maintaining a medical
history for inmates. The passage of time has been substantial, however, and to
some degree the State’s ability to investigate is impeded to its
prejudice. See Edens v State of New York, 259 AD2d 729 (2d Dept
1999) (Two years and two and one-half months from date of
accrual). Indeed, if the allegations that actionable conduct occurred in
1995 are the basis for any claim the passage of time has been considerable, and
the memory of any witnesses may be faint. Accordingly, these related factors
weigh against granting the motion.
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
; Schreck v State of New York
AD2d 882 (2d Dept 1981)
; Favicchio v State
of New York
, 144 Misc 2d 212, 214 (Ct Cl
; Jolley v State of New York
Misc 2d 550, 551-552 (Ct Cl 1980)
cf. DePaolo v State of New York
, 99 AD2d 762 (2d Dept
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
The grievance documents claimant appended to his claim do not support any claim
of malpractice or other cognizable cause of action. [See Affidavit in
Support of Motion for Permission to File a Late Claim by Woody Jean-Charles,
Exhibits A, B and C]. His written grievance asserts that although the diagnosis
was available to medical staff since 1995, “. . . DOCS . . . never
treated or caused me to be treated, or never allowed me to become aware of this
virus so that I can properly eat, exercise, an/or obtain medication, etc. . . .
to help and control the deteriorating conditions Hepatitis B has caused me
physically, mentally and my family/friends emotionally.” [Ibid.
The superintendent’s decision on the grievance notes:
Other grievance documents note that claimant may have not been advised of
abnormal medical findings, but such documents confirm that proper treatment was,
and is, being given.
Without substantiation in medical records, for example, showing the time frames
for any omissions in notice or diagnosis or treatment, and, more significantly,
without substantiation by a medical expert of the effect, if any, of delays in
notice or diagnosis or treatment - indeed the only thing that claimant avers is
that he would have eaten or exercised differently - claimant has not established
the appearance of merit for late claim purposes.
Accordingly, and after careful balancing and consideration of all the factors,
the claimant’s motion for permission to serve and file a late claim
[M-73844] is hereby in all respects denied.