New York State Court of Claims

New York State Court of Claims

HOWARD v. THE STATE OF NEW YORK, #2007-037-025, Claim No. NONE, Motion No. M-73255


Motion for leave to late file a claim denied. Movant failed to move within the requisite statutory period and failed to show a meritorious cause of action.

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:
Harold Howard, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: James L. Gelormini, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 18, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The following were read and considered with respect to Movant’s motion for permission to late file a claim:
1. Motion and unsworn statement of pro se Movant, Harold Howard, dated

February 15, 2006,[1] and filed April 12, 2007, with annexed Exhibits;

2. Opposing affirmation of Assistant Attorney General James L. Gelormini dated May

18, 2007, with annexed Exhibit 1.

3. Unsworn reply letter[2] from Movant dated May 29, 2007, with annexed Exhibits.

Movant, a pro se inmate, brings this motion for permission to late file and serve a claim. In the proposed claim annexed to the motion papers, Movant alleges that the Defendant is a physician and surgeon who improperly, negligently and carelessly operated on Movant in January of 2004. Movant further alleges that this physician improperly advised and instructed Movant concerning post-operative care and procedures. While this physician is not named in the proposed claim, Movant annexes to his motion papers a notice of intention to file a claim verified on February 22, 2006, which identifies the physician as Dr. Levy [sic] and alleges that Movant “acquired an infectionn (hydroceil [sic] on left testicle, cyst)” during a hernia operation. Movant also annexes to his motion papers a Wyoming County Community Hospital “Consent for Treatment” form signed by the Movant on January 28, 2004, which identifies the physician as Dr. Levey.

Pursuant to § 10 (6) of the Court of Claims Act, a motion for permission to late file and serve a claim must be brought within the period of time when “a like claim against a citizen of the state” would not be precluded by the applicable CPLR Article 2 statute of limitations. Under CPLR § 214-a, a claim for medical malpractice must be commenced within two and one-half years of the date of accrual. Even liberally applying the doctrine of continuous treatment, the latest possible accrual date alleged in the proposed claim would be late January or early February of 2004, when Dr. Levey would have given Movant the allegedly improper post-operative instructions and when Dr. Levey allegedly advised Movant that he could return to his regular activities (see Movant’s notice of intention annexed to his motion papers).[3] Movant’s motion was not filed until April 12, 2007, more than three years after the latest possible accrual date. Thus, even if the Court were to construe the proposed claim as sounding in medical negligence as opposed to medical malpractice, this motion was not filed within the three-year CPLR statute of limitations for commencement of a negligence cause of action under CPLR § 214. Accordingly, the Court lacks the authority to grant the requested relief.

Defendant alleges that Movant’s motion would have to be denied even if the motion had been timely and the statutory factors of a 10 (6) motion had been considered. The Court agrees. Court of Claims Act § 10 (6) grants the Court discretion to permit the late filing and service of a claim upon consideration of all relevant factors, including: (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 to be meritorious; (5) whether substantial prejudice to the State resulted from the failure to timely file and serve a claim; and (6) whether any other remedy is available. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court is afforded considerable discretion in determining whether to permit the late filing and service of a claim (Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979 [1982]; Ledet v State of New York, 207 AD2d 965 [1994]).

Movant alleges that the delay in filing and serving a claim was excusable because he is not an attorney, did not have access to legal counsel or to a law library, and because of the illness underlying the claim. Ignorance of the law and incarceration are not adequate excuses for failure to file and serve a claim within the statutory 90-day period of time (Holland v State of New York, Ct Cl, September 18, 2003, Lack, J., Claim No. None, Motion No. M-66837, UID # 2003-033-022;[4] Matter of Sandlin v State of New York, 294 AD2d 723 [2002], lv dismissed 99 NY2d 589 [2003]; Plate v State of New York, 92 Misc 2d 1033 [1978]). Moreover, while Movant attaches to his reply papers copies of letters from several attorneys who declined to represent Movant, these letters were all dated in 2006. There is no evidence that Movant made any attempt to locate an attorney within the 90-day statutory period or that any residual results from his January 2004 surgery prevented him from timely filing and serving a claim. This factor weights against Movant’s motion.

The three factors of notice, opportunity to investigate and prejudice are intertwined and may be considered together (Brewer v State of New York, 176 Misc 2d 337 [1998]). Here, Movant alleges that Defendant had notice because medical personnel in the prison dispensary “were aware of my illness,” and Defendant had the opportunity to investigate “by simply questioning the guards and other persons who were present in the machine shop at the time of my injury.” Obviously, Movant’s motion papers and the allegations therein were taken from the papers of another inmate as the proposed claim does not involve an accident in a machine shop or a stay in a prison dispensary. More importantly, there is nothing in Movant’s papers to establish that the Defendant had notice or the opportunity to investigate the surgery performed by Dr. Levey. The State would be prejudiced if forced to defend this stale claim and, thus, these factors also weigh against Movant’s motion.

Of the six statutory factors to consider, merit is the most decisive as it would be futile to permit a meritless claim to proceed (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1 [1977]). Defendant argues that the surgery complained of was performed at a county facility, Wyoming County Community Hospital, and that the surgeon was not an employee of the State of New York (see Defendant’s Exhibit 1). The Court agrees that the State is not responsible for any actions occurring at an outside medical facility or by an independent physician (Rivers v State of New York, 159 AD2d 788 [1990], lv denied 76 NY2d 701 [1990].[5] Moreover, in a medical malpractice or medical negligence action where the cause of action is based on allegations of improper care, an expert affidavit must be submitted attesting to the surgeon’s deviation from the appropriate standard of care (Matter of Perez v State of New York, 293 AD2d 918 [2002]). Movant has failed to submit an expert affidavit and, otherwise, failed to establish that his proposed claim has even the appearance of merit.

Finally, Movant argues that he has no other remedy. Contrary to this assertion, Movant could have commenced an action against Dr. Levey and/or against the Wyoming County Community Hospital, albeit not in this court. Because Movant failed to move for permission to late file in a timely manner and because all of the factors to be considered with respect to a § 10 (6) motion to late file weigh against granting the motion, it is hereby

ORDERED, that Movant’s motion (M-73255) for permission to late file and serve a claim is denied.

June 18, 2007
Buffalo, New York

Judge of the Court of Claims

[1]. Movant’s papers contain an affidavit of service upon the Attorney General of a notice of intention to file a claim sworn to April 9, 2007, a verified notice of intention to file a claim sworn to February 22, 2006, and a verified proposed claim sworn to April 9, 2007. It does not appear, however, that Movant’s statement in support of his motion for permission to file a late claim was notarized. Accordingly, Movant’s motion may be treated as a nullity. In the interests of judicial economy and because the Defendant has responded to the motion, the Court will address the merits of the motion.
[2]. In lieu of a properly notarized affidavit, Movant submitted an unsworn letter in reply to Defendant’s opposition.
[3]. An original verified notice of intention to file a claim sworn to February 22, 2006 was annexed to Movant’s motion papers. This original notice of intention was received by the Chief Clerk’s office on March 15, 2006 and returned on March 16, 2006 as it is no longer necessary to file a notice of intention. There is no evidence to establish that a notice of intention was served on the Attorney General within the ninety-day statutory period or at any other time.
[4]. This and other unreported Court of Claims decisions may be found on the Court’s web site at
[5]. In his reply papers, Movant refers to Jacques v State of New York, 127 Misc 2d 769 (1984). This case is not relevant because it involves surgery (nasalplasty) performed at a New York State correctional facility clinic by a physician employed by the State.