7. Affidavit of Gregory P. Miller, Esq., sworn to October 25, 2006. With this
motion, Charles O. Whitfield, Jr. and his wife Josie M. Whitfield request
permission to file a late claim pursuant to § 10(6) of the Court of Claims
Act (“CCA”). The proposed claim alleges a cause of action for
medical malpractice following shoulder surgery performed on Claimant Charles O.
Whitfield, Jr. in late April of 2004.
After the surgery, while Claimant was in the care and custody of the Department
of Correctional Services (“DOCS”), Claimant’s shoulder became
infected. Over time, this infection spread to his spine. Ultimately, Claimant
had to have surgery on his spine and he has been left with permanent paraplegia.
According to Claimant, Defendant’s failure to properly diagnose and treat
his infection is the proximate cause of his paraplegia.
Subdivision 6 of § 10 of the CCA enumerates six factors to be weighed in
connection with a late claim motion: (1) whether the delay was excusable; (2)
whether Claimant has any other remedy; (3) whether Defendant had notice of the
essential facts constituting the claim; (4) whether Defendant had an
opportunity to investigate; (5) whether Defendant would be substantially
prejudiced; and (6) whether the claim appears to be meritorious. This list is
not exhaustive and the presence or absence of any one factor is not dispositive.
Rather, the Court in its discretion balances these factors in making its
determination (Bay Terrace Coop. Section IV v New York State Employees’
Retirement Sys. Policemen’s and Firemen’s Retirement Sys., 55
With regard to his excuse for the delay, Claimant alleges that he is not an
attorney and that he was unaware of the statutory requirements for filing a
claim against the State. Claimant also alleges that the nature of the cause of
action, Defendant’s failure to properly diagnose and treat his infection,
was not readily discoverable within the first 90 days. He has also sufficiently
demonstrated through his own affidavit and the supporting affidavit of Angelo
T. Scotti, M.D., that his serious medical issues prevented him from taking steps
toward commencing an action until at least March of 2005. Although Claimant
alleges that additional time was needed to gather the voluminous medical records
underlying his action, I find that Claimant has failed to adequately explain the
delay between March of 2005 and August 25, 2006, the date his late claim
application was filed.
Accordingly, I find
that this factor weighs in Defendant’s favor. The absence of an excuse,
however, is only one of the factors considered by the Court in reviewing a
§ 10(6) application, and does not necessarily preclude the relief sought
here (Bay Terrace Coop. Section IV v New York State Employees’
Retirement System Policemen’s and Firemen’s Retirement Sys.
While, as Defendant points out, Claimant does have an alternative remedy,
apparently against the staff of Wyoming Community Hospital in Supreme Court,
from the documents before me it appears that a large portion of the significant
medical problems Claimant incurred resulted from Claimant’s treatment by
Defendant after leaving Wyoming Community Hospital. For this reason, I find
that this factor weighs in Claimant’s favor.
The next three factors covering notice, opportunity to investigate and
prejudice are closely related and may be considered together (Brewer v State
of New York, 176 Misc 2d 337, 342). The Defendant has argued that it did
not have timely notice of a potential claim in this matter. However, as
Defendant has conceded, the nature of the claim and the voluminous medical
records available indicate that an adequate investigation may still be conducted
and that Defendant has not been significantly prejudiced by Claimant’s
delay. Accordingly, I find that these three factors also weigh in
Of the six enumerated factors in CCA § 10(6), it is the appearance of
merit that is most significant. It would be pointless to grant permission to
file late if the proposed claim did not have at least the appearance of merit
(see e.g. Prusack v State of New York, 117 AD2d 729). Generally, a
proposed claim meets the appearance of merit standard if it passes a two-fold
test. It must not be patently groundless, frivolous or legally defective, and
upon consideration of the entire record, there must be reasonable cause to
believe a valid cause of action exists (Matter of Santana v New York State
Thruway Auth., 92 Misc 2d 1).
Claimant has submitted a detailed affidavit from Angelo T. Scotti, M.D., which
describes the treatment given to Claimant and specifies the ways in which, in
his opinion, Defendant’s care of Claimant deviated from accepted medical
standards. This included the failure to promptly perform several diagnostic
tests, the timely use of which, according to Dr. Scotti, could have prevented
Claimant’s severe resulting injuries. Defendant has failed to contradict
Dr. Scotti’s affidavit. Accordingly, I find that Claimant has adequately
demonstrated the merit of his proposed claim.
Upon reviewing and balancing all of the factors enumerated in CCA § 10(6),
I find that they weigh in favor of granting Claimants’ motion for
permission to file a late claim.
Accordingly, it is hereby
ORDERED, that Claimants’ motion for permission to file a late
claim is GRANTED. Claimants are, therefore, directed to file and serve a claim
identical to the proposed claim submitted in support of this motion, and to do
so in conformance with the requirements of CCA §§ 10, 11 and 11-a
within sixty (60) days from the date this decision and order is filed.