New York State Court of Claims

New York State Court of Claims

JEAN-CHARLES v. THE STATE OF NEW YORK, #2007-030-582, Claim No. NONE, Motion No. M-73844


Late claim motion denied. No appearance of merit to pro se inmate’s claim that delayed diagnosis of Hepatitis-B - or delayed notice of such diagnosis - caused him harm. No affidavit of merit from a medical expert or medical records submitted.

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:
Third-party defendant’s attorney:

Signature date:
December 17, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


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

serve and file a late claim:

1-3 Notice of Motion for Permission to File a Late Claim; Affidavit in Support of Motion for Permission to File a Late Claim by Woody Jean-Charles, claimant; proposed claim; attached exhibits

  1. Affirmation by Dewey Lee, Assistant Attorney General
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 available.[1] 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).

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 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.

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 2002)[2]; Schreck v State of New York, 81 AD2d 882 (2d Dept 1981)[3]; Favicchio v State of New York, 144 Misc 2d 212, 214 (Ct Cl 1989)[4]; Jolley v State of New York, 106 Misc 2d 550, 551-552 (Ct Cl 1980)[5]; But cf. DePaolo v State of New York, 99 AD2d 762 (2d Dept 1984).[6] 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).[7]

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. Exhibit A].

The superintendent’s decision on the grievance notes:
“Upon review of the grievant’s medical chart it was found that in 1996 his tests indicated that he had a past exposure to the illness, but there was no evidence of liver involvement until 2004, when tests showed borderline elevated liver test results. He was transferred to Sing Sing in April 2005 and tested again and referred to a specialist in December 2005, and seen on 1/6/06. Appropriate treatment has begun.

Prior to 2004 there was no treatment protocol. When his liver enzyme tests indicated liver involvement, he was diagnosed and treatment begun. Whether or not he was informed of any medical issue prior to 2005 cannot be ascertained at this time.” [Ibid. Exhibit B].
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.

December 17, 2007
White Plains, New York

Judge of the Court of Claims

[1]. 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).”]
[2]. 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 are insufficient in support of late claim motion. Expert medical evidence was required to show that the alleged inadequate treatment of the 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.
[3]. 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.
[4]. 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.
[5]. 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.
[6]. 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.
[7]. 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.