New York State Court of Claims

New York State Court of Claims

STEVANS v. STATE OF NEW YORK, #2007-038-571, , Motion No. M-73635


Synopsis


Motion for late claim relief (Court of Claims Act § 10 [6]) granted in part. Proposed claim had an appearance of merit with respect to claim sounding in medical or ordinary negligence. Motion denied as to any cause of action for medical malpractice because movant did not submit expert’s affidavit demonstrating merit in such a cause of action

Case Information

UID:
2007-038-571
Claimant(s):
MICHAEL STEVANS
Claimant short name:
STEVANS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-73635
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
MICHAEL STEVANS, Pro se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michael T. Krenrich, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 26, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

Movant, an inmate currently incarcerated at Orleans Correctional Facility, seeks permission to file a late claim pursuant to Court of Claims Act § 10 (6). The proposed claim alleges that while movant was performing his job in the clothing industry at Franklin Correctional Facility on June 14, 2006, part of a sewing machine needle became lodged in his right index finger, and that during two visits to a facility nurse on June 14 and 15, 2006, he was given only band-aids and, on the second visit, ibuprofen for the pain. The proposed claim further alleges that an x-ray performed on June 16, 2006 revealed the presence of the needle in his finger, but that he was not taken to see a doctor until June 27, 2006, and that he did not undergo surgery to remove the needle until July 31, 2006. The proposed claim asserts that the State breached its duty to administer appropriate medical care in a timely fashion (see Proposed Claim, ¶ 13). The State opposes the motion for late claim relief. In deciding a motion to file a late claim, Court of Claims Act § 10 (6) requires the Court to 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 movant 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.

The State’s opposition to the motion on the ground that movant has not offered a valid excuse for the late filing is well-taken. Movant’s status as an incarcerated inmate and his claimed reliance on an allegedly inept inmate law clerk who failed to properly serve the timely notice of intention constitutes a proffered excuse of ignorance of the law, an excuse which does 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]).

Whether the State 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]). Here, the State does not offer any argument on these points, and indeed concedes that it was in actual receipt of a notice of intention to file a claim on August 16, 2006 (see Krenrich Affirmation, dated August 20, 2007, Exhibit A), thus providing it with reasonably timely actual notice of the claim. Accordingly, these factors weigh in favor of granting late claim relief.

The parties do not address whether movant has an available alternative remedy. Accordingly, in the absence of any argument on this point, the Court concludes that this factor weighs neither in favor of or against movant.

Turning to the appearance of merit of the proposed claim,
this 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]). 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., 92 Misc 2d 1, 11 [Ct Cl 1977]). When a proposed claim alleges medical malpractice, however, 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, 950 [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], at 11 [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]).

The State apparently views the proposed claim as asserting a cause of action for medical malpractice, and argues that the merit of the proposed claim has not been demonstrated because movant has not submitted an affidavit of a medical expert stating that the State’s actions departed from accepted standards of medical care. While this point has some force, it does not completely address the nature of the negligence stated in the proposed claim. Alleged negligence by a medical provider does not always constitute medical malpractice, i.e., claims alleging negligent acts or omissions that can be assessed on the basis of common every day experience (see e.g. Hale v State of New York, 53 AD2d 1025 [3d Dept 1976], lv denied 40 NY2d 804 [1976]; Ludsker v State of New York, UID # 2007-030-537, Motion No. M-72962, Scuccimarra, J. [June 4, 2007]; Atkinson v State of New York, UID # 2007-040-029, Motion No. M-73218, McCarthy, J. [June 1, 2007]; Davis v State of New York, UID # 2007-044-008, Claim No. 109210, Schaewe, J. [Apr. 2, 2007]). In particular, delay in providing medical treatment to an incarcerated person may constitute a breach of a duty to provide such treatment, which is distinct from a physician’s duty to provide medical care in accordance with accepted standards of medical care (see Cauley v State of New York, 224 AD2d 381 [2d Dept 1996]; Kagan v State of New York, 221 AD2d 7, 11 [2d Dept 1996]; Matter of Farace v State of New York, 176 AD2d 1228 [4th Dept 1991]; Hathaway v Coughlin, 841 F2d 48, 50 [2d Cir 1988]).

As pertinent to the inquiry into whether the proposed cause(s) of action sound in medical malpractice or other negligence, the proposed claim, which is supported by documentary evidence, alleges that: movant injured his finger on June 14, 2006; his finger was not x-rayed until June 16, 2006, at which time the foreign object inside his finger was observed; movant was not taken to see a doctor until June 27, 2006; and the foreign object was not surgically removed until July 31, 2006, approximately six weeks after movant sustained injury. In the view of the Court, the allegations relating to the State’s failure to treat his condition that are attributable to administrative delays, to administrative determinations that movant’s medical appointments need not be scheduled more promptly, or to other consideration that are not grounded in the exercise of medical judgment, do not sound in medical malpractice, and thus, an expert affidavit is not required to support this motion to file a late claim. If proven at trial, unreasonable or intentional delays by the State’s employees in scheduling movant’s medical treatment could provide a basis for liability (see generally Kagan v State of New York, supra), and thus, the proposed claim has the appearance of merit.

However, to the extent the proposed claim alleges that the State’s medical agents inadequately assessed the severity of movant’s injury or failed to order surgical treatment promptly enough, such allegations address an exercise of medical judgment, and would sound in a failure to comport with accepted standards of medical care. Accordingly, to the extent movant asserts a cause of action for medical malpractice, it was incumbent upon movant to support his motion for late claim relief with an expert’s affidavit demonstrating that the State’s conduct constituted a departure from accepted standards of medical care. In the absence of such support, the motion for late claim relief will be denied to the extent the proposed claim asserts a cause of action sounding in medical malpractice.

However, upon consideration and weighing of the factors set forth in Court of Claims § 10 (6), the Court finds that to the extent the proposed claim alleges that delays in his treatment were caused by factors other than considered medical judgments, the proposed claim has the appearance of merit. The balance of this and the other factors tips in movant’s favor, and thus, the Court exercises its discretion to grant the motion to file a late claim, but only to the extent the proposed claim asserts a cause of action that does not sound in medical malpractice. Accordingly, it is

ORDERED, that Motion No. M-73635 is DENIED IN PART, to the extent it asserts a cause of action for medical malpractice, and it is further

ORDERED, that the motion is GRANTED IN PART, to the extent it asserts a cause of action sounding in other than medical malpractice. Movant may serve and file his claim within 45 days of the filing date of this decision and order, in accordance with the applicable provisions of the Court of Claims Act and the Uniform Rules for the Court of Claims.

November 26, 2007
Albany, New York

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


Papers considered
:[1]


(1) Notice of Motion, dated June 19, 2007;

(2) Motion for Permission to File a Late Claim, dated June 19, 2007, with Proposed Claim and Exhibits;

(3) Affirmation in Opposition of Michael T. Krenrich, AAG, dated July 18, 2007;

(4) Notice of Motion to Correct Complaint, dated August 4, 2007;

(5) Affirmation of Michael Stevans, sworn to August 4, 2007, with exhibits;

(6) Amended Affirmation in Opposition of Michael T. Krenrich, AAG, dated August 20, 2007,

with Exhibits A-B;

(7) Notice of Motion, dated September 8, 2007;

(8) Affidavit of Michael Stevans, sworn to September 8, 2007, with Exhibits A-C.


[1]. Movant, appearing pro se, submitted papers on this motion that were filed under separate Notices of Motion. All of the papers recited have been treated as papers submitted on Motion No. M-73635, and have not been considered as separate motions.