New York State Court of Claims

New York State Court of Claims

WHITFIELD v. THE STATE OF NEW YORK, #2007-031-004, , Motion No. M-72198


Uncontradicted allegations that Defendant negligently failed to diagnose and treat infection which lead to Claimant’s paralysis indicates that proposed claim has the appearance of merit. Other CCA § 10(6) factors weigh in Claimant’s favor. Motion for permission to file late claim is granted

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:
New York State Attorney General
BY: GREGORY P. MILLER, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 2, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 7, were read on motion by Claimants for permission to file a late claim:
1. Claimants’ Notice of Motion, filed August 25, 2006;
2. Affidavit of David A. Johns, Esq., sworn to August 25, 2006, with attached exhibits;
3. Affidavit of Charles O. Whitfield, sworn to July 24, 2006;
4. Affidavit of Angelo T. Scotti, M.D., sworn to August 15, 2006;
5. Claimants’ Memorandum of Law, dated October 13, 2006;
6. Reply Affidavit of David A. Johns, Esq., sworn to October 31, 2006;
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.[1]

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 NY2d 979).

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.[2] 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., 55 NY2d 979).

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 Claimant’s favor.

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.

March 2, 2007
Rochester, New York

Judge of the Court of Claims

[1].As Claimant Josie M. Whitfield’s claim is entirely derivative, unless otherwise specified, all references to Claimant refer to Charles O. Whitfield, Jr.
[2].Although not addressed by either party, I find, for the purposes of this motion only, that based upon the documents before me, the continuous treatment doctrine appears to apply at least until March of 2005, when Claimant was released from the hospital after several months in a semi-conscious state. For this reason, I find that Claimant’s motion, brought less than two and one half years from March 1, 2005, is timely.