New York State Court of Claims

New York State Court of Claims

HOOVER v. STATE OF NEW YORK, #2007-039-031, , Motion No. M-73212


Synopsis


Movant’s application to file late claim is denied as he failed to establish an excuse for his failure to file the claim in a timely manner or the merit of his proposed claim. To the extent movant set forth allegations of medical malpractice, he failed to provide any medical evidence in support thereof. The Court is without jurisdiction to the extent that movant alleges violations of the United States Constitution. Additionally, movant failed to set forth a reasonable excuse for his delay of almost two years in bringing the claim other than to attribute the delay to “mitigating circumstances and clerical mistake and error,” which is inadequate to prevail on the instant application.

Case Information

UID:
2007-039-031
Claimant(s):
LEROY HOOVER
Claimant short name:
HOOVER
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-73212
Cross-motion number(s):

Judge:
JAMES H. FERREIRA
Claimant’s attorney:
Leroy Hoover, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Belinda A. WagnerAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 30, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Leroy Hoover (hereinafter movant) seeks an order from the Court granting him permission to file a late notice of intention to file a claim. However, no such form of relief is available to claimant, and the Court shall treat the motion as one for permission to file a late claim.

It is well settled that “[t]he Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim” (Matter of Brown v State of New York, 6 AD3d 756, 757 [2004]). The Court’s denial of such an application will not be disturbed “where ‘the excuse offered for the delay is inadequate and the proposed claim is of questionable merit’” (id., quoting Matter of Perez v State of New York, 293 AD2d 918, 919 [2002]). When deciding whether to grant an application to file a late claim, the court is required 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 claimant has any other available remedy” (Court of Claims Act § 10 [6]).
In opposition to the motion, the State (hereinafter defendant) concedes that it had notice of the essential facts constituting the claim and an opportunity to investigate the circumstances underlying the claim. Nor is it defendant’s position that “there will be substantial prejudice to the State if [the claim] is allowed to be served late.” Rather, defendant argues that movant has not established an excuse for his failure to file the claim in a timely manner or the merit of his proposed claim. The Court agrees.

Movant offers, among other things, his affidavit and a proposed claim in support of the instant application. Movant alleges that, during June 2005, he suffered a deprivation of his Eighth Amendment rights due to acts by defendant constituting medical malpractice and negligent hiring/supervision arising out of treatment that he received for an infected cyst while an inmate at Clinton Correctional Facility. To the extent that movant sets forth allegations of medical malpractice, the Court notes that he failed to provide any medical evidence in support of this aspect of his claim (see Matter of Gonzalez v State of New York, 299 AD2d 675, 676 [2002]; Matter of P.A. v State of New York, 277 AD2d 671, 672 [2000]; compare Matter of Hughes v State of New York, 25 AD3d 800, 800 [2006]). Moreover, to the extent that movant alleges violations of the United States Constitution, the Court is without subject matter jurisdiction of such claims (see Brown v State of New York , 89 NY2d 172 [1996]; Lyles v State of New York, 2 AD3d 694 [2003] and Suarez v State of New York, 14 Misc 3d 1230 (A) [2006]).

In addition to the foregoing, movant has failed to set forth a reasonable excuse for his delay of almost two years in bringing a claim other than to attribute the delay to “mitigating circumstances and Clerical mistake and or Error,” which is inadequate to prevail on the instant application (compare Jomarron v State of New York, 23 AD3d 527, 528 [2005]; see also Quinn v Manhattan & Bronx Surface Tr. Operating Auth., 273 AD2d 144 [2000]).

Accordingly, it is hereby ordered that M-73212 is denied.

August 30, 2007
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:

  1. Notice of Motion for Permission to File Late Notice of Intention to File Claim dated March 2007;
  2. Affidavit in Support of Motion for Permission to File a Late Notice of Intention to File a Claim sworn to on March 29, 2007 with exhibits; and
  3. Affirmation in Opposition affirmed on April 17, 2007.