New York State Court of Claims

New York State Court of Claims

VESPUCCI v. THE STATE OF NEW YORK, #2007-038-505, Claim No. 112571, Motion No. M-72230


M-72475


Synopsis


Defendant’s motion to dismiss medical malpractice claim on jurisdictional grounds granted; claimants motion to file late claim denied without prejudice.

Case Information

UID:
2007-038-505
Claimant(s):
AMERIGO VESPUCCI
Claimant short name:
VESPUCCI
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112571
Motion number(s):
M-72230M-72475
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
AMERIGO VESPUCCI, Pro Se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Kathleen M. Arnold, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 16, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant, an inmate currently incarcerated at Franklin Correctional Facility in Malone, New York, seeks redress in this Court for alleged medical malpractice and negligence. Defendant moves to dismiss the claim on jurisdictional grounds, asserting that claimant failed to timely and properly serve the Attorney General with a notice of intention to file a claim. Claimant makes a motion pursuant to Court of Claims Act § 10 (6) for permission to file a late claim. Claimant also asks that the instant claim for medical malpractice be consolidated with his pending claim for dental malpractice (Claim # 111348).


The claim makes two sets of distinct allegations which must be addressed separately for purposes of resolution of the motion and cross motion. One set of factual allegations alleges specific acts of medical malpractice in October 2004 relating to a respiratory condition that claimant suffered at that time (see Claim # 112571, ¶¶ 12-19). The other set of factual allegations recite numerous medical conditions that defendant has allegedly negligently and/or deliberately failed to treat as a result of its “policy, pattern and practice” of neglecting claimant’s medical needs.

A claim for damages from personal injury due to the State’s negligence must be filed with the Clerk of the Court and served upon the attorney general within ninety days after the accrual of the claim (Court of Claims Act § 10 [3]). Alternatively, and within that same ninety-day period, the claimant may serve upon the attorney general a written notice of intention to file a claim (id.). If the claimant serves either of those documents by mail, he must do so by certified mail, return receipt requested (Court of Claims Act § 11 [a] [i]). It is well established that the filing and service requirements of the Court of Claims Act must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]) and that the failure to comply with those requirements is a jurisdictional defect requiring dismissal of the claim (see id.; Phillips v State of New York, 237 AD2d 590, 590-591 [2d Dept 1997]; Davis v State of New York, UID # 2006-042-503, Claim # 107278, Motion # M-72510, Siegel, J.,[Jan. 9, 2007]; Farnsworth v State of New York, UID # 2006-031-091, Claim # 110822, Motion # M-71631, Minarik, J. [Dec. 29, 2006]).

On August 3, 2005, defendant received an unverified notice of intention that claimant had sent by first class mail. The notice of intention alleged acts of medical malpractice on or about October 15, 2004 relating to claimant’s respiratory condition. Another notice of intention that was verified but which was also limited to the alleged events of October 2004 was sent by claimant by first class mail and received by defendant on August 12, 2005. Inasmuch as a notice of intention regarding the alleged medical malpractice in October 2004 was not served upon the Attorney General within 90 days of the accrual of the claim, the Court lacks subject matter jurisdiction over that claim (see Rivera v State of New York, 5 AD3d 881 [3d Dept 2004]). Moreover, claimant’s service of the notices of intention by first class mail rendered those notices of intention nullities (see Fulton v State of New York, 35 AD3d 977 [3d Dept 2006]), which claimant concedes (Affidavit of Amerigo Vespucci, ¶13, sworn to Oct. 27, 2006). Accordingly, because the time within which to file and serve the claim was not extended beyond ninety days after accrual (see Court of Claims Act § 10 [3]), the Court lacks subject matter jurisdiction over the claim that was subsequently filed on July 27, 2006.[1]

This claim included allegations relating to defendant’s alleged “policy, pattern and practice” of neglecting claimant’s medical needs (see Claim #112571, ¶¶ 4, 11, 21 & 23), along with recitation of several specific medical conditions suffered by claimant.[2] None of these conditions were addressed in the notices of intention that were defectively served upon defendant, and no separate notice of intention to file a related claim was ever served upon defendant. The claim alleges that claimant advised defendant’s agents of his diseases and disorders upon his receipt into the custody of the Department of Correctional Services in 2003; other than the specific incident in October 2004, no other date is ascribed to any of defendant’s alleged acts or omissions.

The claim was filed on July 27, 2006, but was not served upon the attorney general by certified mail, return receipt requested until August 25, 2006. Thus, only claims that accrued within ninety days of that service date, or on or after May 27, 2006, would be timely (see Court of Claims Act §§ 10 [3]; 11 [a][1]). Inasmuch as the claim alleges that defendant ignored claimant’s medical needs as early as 2003, and it contains no allegations of specific conduct or omissions that occurred within the ninety days preceding the filing and service of the claim, the Court is compelled to conclude that the claim is untimely.

Claimant argues, however, that the continuous treatment toll set forth in CPLR 214-a controls here, as claimant has asserted an ongoing pattern and practice of medical negligence. That argument, however, is misplaced. “In a medical malpractice action, the cause of action accrues on the date when the alleged original negligent act or omission occurred” (Young v New York City Health & Hosps. Corp., 91 NY2d 291, 295 [1998]). “The toll of the continuous treatment doctrine was created to enforce the view that a patient should not be required to interrupt corrective medical treatment by a physician and undermine the continuing trust in the physician-patient relationship in order to ensure the timeliness of a medical malpractice action or notice of claim” (id. at 296). Here, claimant alleges a consistent and continuing pattern of failure to treat, beginning in 2003. As there was no initial treatment nor treatment of an ongoing nature, there was no corrective medical treatment or patient-physician relationship that would have been interrupted by the timely commencement of a claim. Thus, the continuous treatment toll of CPLR 214-a is inapplicable.
Claimant’s Motion for Permission to File a Late Claim and to Consolidate Claims
Claimant moves pursuant to Court of Claims Act § 10 (6) to file a late claim. At the threshold, it is noted that claimant’s motion is not accompanied by a proposed claim (see Court of Claims Act § 10 [6]). Claimant states in his reply papers, however, that the claim that was filed on July 27, 2006 is his proposed claim. Inasmuch as defendant has presumed that said claim is the proposed claim in its opposition to the motion, the Court will treat it as such.

In deciding a motion to file a late claim, pursuant to Court of Claims Act § 10 (6), the Court must consider, among other factors, “whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy.” The presence or absence of any particular factor is not controlling (see Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s and Firemen’s Retirement System, 55 NY2d 979, 981 [1982]), and the weight accorded the various factors is a matter within the discretion of the Court.

Claimant’s asserted excuses for the late filing – his status as an incarcerated inmate, his ignorance of the law, and his lack of access to legal materials and reliance on an inmate law clerk – are conclusory and ultimately uncompelling excuses that do not weigh in his favor (see Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]; Matter of Thomas v State of New York, 272 AD2d 650, 651 [3d Dept 2000]). Claimant’s assertions that his lack of access to legal materials was caused or contributed to by defendant’s negligence and that he was medically confined for the duration of the 90-day period following accrual of his causes of action are self-serving and conclusory contentions that cannot be credited absent some form of evidentiary support.

Whether the defendant had notice of the essential facts constituting the claim and had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state are closely related, and may be considered together (see Conroy v State of New York, 192 Misc 2d 71, 72 [Ct Cl 2002]; Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). The essential facts underlying the alleged malpractice in October 2004 were not brought to defendant’s attention until claimant first served an untimely notice of intention more than nine months after the alleged malpractice. Thus, defendant did not have a reasonably timely opportunity to investigate this claim of medical malpractice. With respect to defendant’s notice of the facts of claimant’s other medical conditions and defendant’s alleged failure to treat them, claimant asserts that he has filed three Inmate Grievance Complaints regarding “denial of medical, dental and mental health care” (Vespucci Affidavit, sworn to October 27, 2006, ¶ 13), but he neither particularizes the substance of those grievances nor attaches a copy of them to his affidavit. Thus, the Court cannot find that defendant had notice of or opportunity to investigate the underlying facts of this part of the claim. It is noted, however, that defendant does not assert that it suffered substantial prejudice flowing from the late notice of the facts.

While a proposed claim’s appearance of merit is perhaps the weightiest factor for the Court to consider because Court of Claims Act § 10 (6) reflects a legislative determination that the Court of Claims should permit a potential litigant to have his or her day in court (see Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]), a potential litigant should not be subjected to the futility of pursuing a meritless claim (see Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [Ct Cl 1977]). In general, a party seeking to establish the merit of a proposed late claim need not demonstrate a likelihood that he will prevail on his claim. Rather, a proposed claim has an appearance of merit within the meaning of Court of Claims Act § 10 (6) if: (1) the proposed claim is not patently groundless, frivolous or legally defective; and (2) all of the evidence submitted on the motion establishes reasonable cause to believe that a valid cause of action exists (see Matter of Santana v New York State Thruway Auth., supra at 11). However, when a proposed claim alleges medical malpractice, the merit of the claim must be patently revealed by medical records or supported by an expert affidavit (see Matter of Robinson v State of New York, 35 AD3d 948 [3d Dept 2006]; Matter of Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002]; Rosario v State of New York, 8 Misc 3d 1007[A] [Ct Cl 2005]; Jackson v State of New York, UID #2007-029-001, Motion # M-72630, Mignano, J. [Jan. 10, 2007]; Williams v State of New York, UID #2006-028-590, Motion # M-71757, Sise, P.J. [Oct. 17, 2006]). Although the claim alleges specific acts relating to his medical treatment in October 2004, claimant has not submitted an expert affidavit stating that defendant’s actions departed from the accepted standard of care (see Rosario v State of New York, supra). Turning to the remaining allegations, in the absence of claimant’s medical records, his numerous claimed ailments and requests for treatment, if any, are not established. Further, in the absence of an expert affidavit, there is no support for claimant’s contention that defendant committed medical negligence or malpractice, or that the alleged malfeasance or nonfeasance caused injury to claimant (id.). Moreover, the proposed claim’s broad sweeping allegations regarding claimant’s medical conditions and its failure to specify dates on which claimant requested and was denied treatment for each claimed ailment undermines any appearance of merit to those claims.

The Court accepts claimant’s undisputed assertion that he has no other remedy available to him.

Considering and weighing all of the above, claimant’s motion to file a late claim will be denied. However, that part of the claim alleging medical malpractice with respect to the October 2004 respiratory illness sets forth specific dates and alleges particular conduct and therefore may have merit. Nevertheless, the Court is unable to evaluate that potential for merit without admissible proof that defendant’s actions deviated from the accepted standard of care. It is noted that defendant does not argue that it will suffer substantial prejudice should the late filing be permitted. Accordingly, that part of claimant’s motion will be denied without prejudice to a further motion that is supported by admissible evidence establishing the merit of the proposed claim.

Finally, claimant’s motion to consolidate the instant claim with claim # 111348 (alleging dental malpractice by failure to provide claimant with implants) will be denied as moot. Moreover, the two claims do not involve common questions of law or fact warranting consolidation (see CPLR 602[a]).

Accordingly, defendant’s Motion # M-72230 is GRANTED, and claim # 112571 is dismissed. Claimant’s Motion # M-72475 is DENIED in all respects, except that it is denied without prejudice to a further motion for permission to file a late claim with respect to alleged medical malpractice relating to claimant’s illness in October 2004 that is supported by an affidavit of a physician.



February 16, 2007
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims


Papers Considered:


(1) Claim, filed July 27, 2006;

(2) Notice of Motion to Dismiss, dated September 6, 2006;

(3) Affirmation of Kathleen M. Arnold, AAG, dated September 6, 2006 with exhibits A-D;

(4) Affidavit of Amerigo Vespucci in Support of Opposition to Motion to Dismiss, sworn to

October 27, 2006;

(5) Notice of Motion, dated October 27, 2006;

(6) Affidavit of Amerigo Vespucci in Support of Motion to File Late Claim and to Consolidate

Claims, sworn to October 27, 2006;

(7) Affirmation of Kathleen M. Arnold, AAG in Opposition to Motion to File Late Claim and

Consolidate Claims, dated November 30, 2006;

(8) Correspondence of Amerigo Vespucci, dated December 7, 2006;

(9) Claim # 111348.


[1]. Defendant was served with two claims, one on July 28, 2006 and another on August 25, 2006 (see Arnold Affirmation, dated September 6, 2006, Exhibits C and D). Both claims are substantively identical to the claim that was filed, but neither is a true copy. Defendant does not raise any issue in this regard, and this decision will refer to the claim that was filed with the Clerk of the Court.
[2]. Claimant asserts that he suffers serious disorders resulting from his exposure to Agent Orange, and that defendant failed to obtain his medical records upon his reception into the care of the State. The claim further alleges that defendant has failed to provide claimant with treatment at a Veterans Administration Hospital, failed to treat his advanced liver disease, heart disease, esophogeal disorders, hernias and other conditions, and that it has failed to provide him with prosthetic devices including a back brace, orthopedic footwear, hearing aids, etc.