New York State Court of Claims

New York State Court of Claims

ATKINSON v. THE STATE OF NEW YORK, #2007-040-029, , Motion No. M-73218


10(6) Motion. Prisoner. Granted in part, denied in part.

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:
John R. Atkinson, III, Pro Se
Defendant’s attorney:
Attorney General of the State of New YorkBy: Michael T. Krenrich, Esq., AAG
Third-party defendant’s attorney:

Signature date:
June 1, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


For the reasons set forth below, Movant’s application to serve and file a late claim pursuant to Court of Claims Act § 10(6) is granted in part and denied in part.

The proposed claim, attached to the motion papers, alleges that, when Mr. Atkinson entered the State correctional system on or about September 21, 2005 at Downstate Correctional Facility in Fishkill, he advised that he suffered from vertigo and was taking medication which caused dizziness. Movant asserts that he should have been given a bottom bunk because of his medical status, but he received an upper bunk. Thereafter, on November 12, 2005, at Bare Hill Correctional Facility (Bare Hill) in Malone, Movant fell while attempting to descend from the top bunk. He asserts he was never instructed on how to get down from the top bunk and was not provided with a ladder. He alleges he was climbing down from the side of the bed when it began to tip over on him; he let go and fell backward, hitting the back of his neck on the edge of a partition wall and his head against the side of it. Movant further alleges negligent acts relating to his medical treatment.

The proposed claim also asserts that Movant did not receive proper medical treatment from personnel at Bare Hill.

In determining whether to grant a motion to file a late claim, Subdivision 6 of Section 10 of the Court of Claims Act sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036). The Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979, 981). However, the burden rests with Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).

The first factor to be considered is whether the delay in filing the claim was excusable. Movant asserts ignorance of the Court’s filing requirements and that he had no access to legal counsel. This is not a reasonable excuse (Matter of Thomas v State of New York, 272 AD2d 650, 651; Matter of Sevilla v State of New York, 145 AD2d 865, 866, lv denied 74 NY2d 601; Modern Transfer Co. v State of New York, 37 AD2d 756). However, the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief (Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., supra at 981).

The next three factors to be addressed – whether Defendant had notice of the essential facts constituting the claim, whether Defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant – are interrelated and will be considered together. In opposition to the motion, the State has submitted the affirmation of Assistant Attorney General Michael T. Krenrich. He asserts that the delay in serving the claim has “hamstrung the State’s investigation” as the passage of time has affected the memory of potential witnesses (Krenrich Affirmation in Opposition, ¶ 11). Defense counsel has not asserted a lack of notice or lack of opportunity to investigate. The State cannot use its silence as a shield against an allegation that it had notice of the essential facts constituting the claim (Cole v State of New York, 64 AD2d 1023, 1024). At best, the above statement can be considered as an argument that the State will be substantially prejudiced by the delay in filing. However, counsel has submitted only his own conclusory affirmation in this regard. There is no statement from a potential witness stating that the witness does not remember this event. Thus, the Court concludes these factors weigh in Movant’s favor.

The fifth factor to be considered is whether Movant has another remedy available. In this case, it appears Movant does not have any alternate remedy, although he does assert he may bring a civil rights action pursuant to 42 USC § 1983.

The sixth, final and, perhaps, most important factor to be considered is whether the proposed claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Savino v State of New York, 199 AD2d 254, 255; Prusack v State of New York, 117 AD2d 729, 730; Rosenhack v State of New York, 112 Misc 2d 967, 968; Flaherty Corp. v State of New York [New York State Parks & Recreation Div.], 102 Misc 2d 438, 440). It is Movant’s burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., supra at 11-12).

Movant’s proposed claim asserts two causes of action; one for negligence and one for medical negligence and/or medical malpractice. At this stage of the proceedings, it should be noted the Court generally takes as true the factual allegations of a movant. Regarding the negligence cause of action, based upon the entire record, the Court finds that this cause of action regarding the fall from the bed has the appearance of merit. Movant need only establish the appearance of merit; despite defense counsel’s assertion to the contrary, he need not prove a prima facie case at this stage of the proceedings.

With respect to Movant’s allegation that he was denied adequate medical care, “[i]t is fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons” (Rivers v State of New York, 159 AD2d 788, 789, lv denied, 76 NY2d 701). To maintain an action for injuries sustained while under the care and control of a medical practitioner and/or medical facility, a party may proceed upon a theory of simple negligence, or upon the more particularized theory of medical malpractice (Hale v State of New York, 53 AD2d 1025, lv denied, 40 NY2d 804). The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons, or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts (Miller v Albany Med. Ctr. Hosp., 95 AD2d 977, 978; Twitchell v MacKay, 78 AD2d 125, 127).

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, 950; Matter of Perez v State of New York, 293 AD2d 918, 919 ; Rosario v State of New York, 8 Misc 3d 1007[A]; Vespucci v State of New York, UID No. 2007-038-505, Motion Nos. M-72230, M- 72475, DeBow, J.; Jackson v State of New York, UID No. 2007-029-001, Motion No. M-72630, Mignano, J.). The proposed claim alleges negligent acts relating to Mr. Atkinson’s medical treatment at Bare Hill. If proved at trial, these allegations could establish Defendant’s liability and, thus, the Court finds that Movant has alleged at least a colorably meritorious claim as to medical negligence. At the same time, Movant 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). In the absence of Movant’s medical records, the merit of any allegations of medical malpractice in his motion papers are not established. Further, in the absence of an expert affidavit, there is no support for his contention that Defendant committed medical malpractice, or that such alleged malfeasance or nonfeasance caused injury to him (id.).

In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in Movant’s favor for the causes of action alleging negligence and medical negligence. The mix of circumstances presented by this case fall well within the remedial purposes of the amendments to the Court of Claims Act enacted in 1976 (Ch. 280), which was designed to vest in the Court of Claims broader discretion than previously existed to permit late filing, indicated a strong concern that litigants with meritorious claims be afforded their day in court (Calzada v State of New York, 121 AD2d 988, 989; Plate v State of New York, supra). Movant has provided ample basis for a favorable exercise of this Court’s discretion to grant him leave to file a late claim against the State as set forth above. Therefore, within forty-five (45) days of the date of filing of this decision and order, Movant shall file with the Clerk of the Court his proposed claim against the State asserting a cause of action for negligence and medical negligence as set forth above only, and serve a copy of the proposed claim upon the Attorney General by certified mail, return receipt requested. In serving and filing the claim, Movant is directed to follow all of the requirements of the Court of Claims Act, including § 11-a, regarding the filing fee, and the Uniform Rules for the Court of Claims.

June 1, 2007
Albany, New York

Judge of the Court of Claims

The following papers were read on Movant’s application for permission to file a late claim:

Papers Numbered

Motion, Affidavit in Support of Motion &
Proposed Claim 1

Affirmation in Opposition 2

Response to Affirmation in Opposition & Exhibits
attached 3