New York State Court of Claims

New York State Court of Claims

MONTES v. THE STATE OF NEW YORK, #2007-045-006, , Motion No. M-72589


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:
Brandon Montes, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: Michael T. Krenrich, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 9, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were reviewed by the Court on this motion: Claimant’s Notice of Motion For Permission to File a Late Claim, Claimant’s Affidavit in Support of Motion for Permission to File a Late Claim with annexed “Verified Complaint,” Defendant’s Affirmation in Opposition, Claimant’s Response to State’s Affirmation in Opposition to Claim filed January 12, 2007 and a Supplement to Claimant’s Response to State’s Affirmation with annexed Exhibits filed January 22, 2007.

Claimant, Brandon Montes, a pro se inmate, moves this Court for leave to file a late claim pursuant to Court of Claims Act § 10(6). In the proposed claim,[1] claimant sets forth that on or about September 10, 2004 he was housed at the Adirondack Correctional Facility in the premises known as 3-Pryor in Room 11, when at approximately 12:00 a.m., the ceiling collapsed on him causing injury to his head, neck and lower back. Claimant alleges that defendant, the State of New York, through its agents, was negligent in the maintenance of the premises. Claimant also alleges that defendant failed to properly treat his resulting injuries. Damages in the amount of $250,000 are sought with respect to the claim for negligent maintenance and with respect to the claim for medical malpractice, claimant requests that his damages be determined at trial.

In support of his motion for late claim relief, claimant contends that he timely served a notice of intention to file a claim on the Attorney General’s office, on or about September 14, 2004. The Court notes that according to the time restrictions contained within Court of Claims Act § 10 claimant had until September 10, 2006 to serve and file his claim. Defendant concedes that it was served with a notice of intention to file a claim within ninety days of the date the claim accrued. However, the present motion was not filed until November 29, 2006, eighty days beyond the expiration of the statutory time limitations. Claimant explains that the delay in filing his claim was due to the problem that “facts which tend to support his claim by way of exhibits just came into his possession.”

Claimant asserts that defendant had notice of the essential facts of the claim through his notice of intention to file a claim, defendant had an opportunity to investigate the claim and defendant has not been prejudiced by his delay in filing the claim. He also states that his claim is meritorious because through no fault of his own, the ceiling collapsed. Finally he asserts that he has no alternate remedy.

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]). In determining whether relief to file a late claim should be granted the Court must take into consideration the factors set forth in Court of Claims Act § 10(6) (Bay Terrace Cooperative Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979 [1982]). The factors are not necessarily exhaustive, nor is the presence or absence of any particular one controlling (id.). Those factors are whether the delay in filing the claim was excusable; whether the defendant had notice of the essential facts constituting the claim; whether the defendant had an opportunity to investigate; whether the defendant was substantially prejudiced; whether the claim appears to be meritorious and whether the claimant has any other available remedy. A proposed claim to be filed, containing all of the information set forth in CCA § 11, shall accompany any late claim application.

Claimant has failed to offer any acceptable excuse for the delay in filing the claim. Awaiting further information or additional evidence to support his claim, while laudable, should not have prohibited claimant from timely filing his claim in this matter.

The next three factors, notice, an opportunity to investigate and prejudice are interrelated and as such will be considered together. Defendant acknowledges that it was served with a notice of intention to file a claim but contends that the document contained insufficient information to put it on notice of the claim or investigate the underlying incident. Although it is clearly claimant’s burden to show that these factors support his application, the Court finds it troubling that defendant has pointed out alleged deficiencies in claimant’s notice of intention to file a claim without submitting the document in question to substantiate its position. Nevertheless, there is no question that this incident occurred, that claimant timely served a notice of intention to file a claim concerning the incident, an inmate injury report resulted from the incident and that defendant is responsible for maintaining the facility. It stands to reason that the condition of the ceiling was inspected so that appropriate remedial action could be undertaken. The Court finds that defendant will not be prejudiced if the claim is permitted to go forward. On balance, these factors weigh in claimant’s favor.

The next factor to be assessed is whether claimant has any other available remedy. In this case, claimant has no other available remedy.

The most significant issue to be considered is that of merit. To permit the filing of a legally deficient claim would be an exercise in futility (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).

In order for a claim to “appear to be meritorious”: (1) it must not be patently groundless, frivolous, or legally defective, and (2) the court must find, upon a consideration of the entire record, including the proposed claim and any affidavits or exhibits, that there is reasonable cause to believe that a valid cause of action exists. ...[T]he court need only determine whether to allow the filing of the claim, leaving the actual merits of the case to be decided in due course. While this standard clearly places a heavier burden on a claimant who has filed late than upon one whose claim is timely, it does not, and should not, require him to definitively establish the merits of his claim, or overcome all legal objections thereto, before the court will permit him to file (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11 [Ct Cl 1977]).

Claimant raises two distinct causes of action in this matter, medical malpractice and negligence. Although claimant does not use the terminology “medical malpractice,” his allegation that defendant “failed in their duties to properly treat the claimant; in carelessly and negligently providing inadequate treatment; in failing to employ the skill, care and diligence commonly and ordinarily possessed and required by physicians” sounds in medical malpractice. “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 be assessed on the basis of the common everyday experience” (Peter Barresi v State of New York, 232 AD2d 962, 963 [3d Dept 1996], quoting Smith v Pasquarella, 201 AD2d 782, 783, quoting Miller v Albany Medical Center Hospital, 95 AD2d 977, 978). Such acts and omissions involve medical science and cannot be evaluated based upon everyday experience, therefore the allegations are indicative of a claim for medical malpractice. In order to establish the appearance of merit in a medical malpractice claim, claimant must set forth that defendant departed from the accepted standard of medical care, and that such a departure was a proximate cause of the injury (Mullally v State of New York, 289 AD2d 308 [2d Dept 2001]). General allegations of medical malpractice that are unsupported by competent evidence establishing the essential elements are insufficient (Torns v Samaritan Hosp., 305 AD2d 965, 966 [3d Dept 2003]). “[E]xpert medical evidence clearly is required to demonstrate that the diagnosis and treatment rendered to claimant by state personnel departed from accepted medical practices and standards” (Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002]).

Claimant has failed to present sufficient evidence, namely expert medical evidence, to support the allegations of medical malpractice in this matter.

With respect to the negligence claim, claimant alleges that defendant failed to provide a safe living environment, created the dangerous condition of the ceiling, knew or should have known of the defective condition of claimant’s housing unit and permitted the condition to exist for an unreasonable length of time. Defendant does acknowledge that it owns and maintains the facility in which the incident is alleged to have occurred. In support of his position, claimant has presented various Department of Correctional Services Ambulatory Health Records as well as a Department of Correctional Services Inmate Injury Report from the date of the accident.

Thus, the Court concludes that claimant has established, for the purposes of this motion, that his claim for negligence is meritorious.

Based upon the foregoing and having considered the statutory factors enumerated in Court of Claims Act §10(6), the Court finds that claimant’s motion to file a late claim is granted in regard to his first cause of action which sounds in negligence and denied with regard to his second cause of action which sounds in medical malpractice. Consequently, claimant shall delete all paragraphs contained within claimant’s second cause of action. Claimant is directed to retain that portion of the ad damnum clause wherein he demands judgment against defendant with respect to the first cause of action in the amount of $250,0000.

Accordingly, within sixty (60) days of the date this decision and order is filed, claimant shall file and serve the proposed claim, in compliance with the Court’s directives contained herein, together with a payment of the appropriate filing fee,[2] pursuant to Court of Claims Act §§ 11 and 11-a.

May 9, 2007
Hauppauge, New York

Judge of the Court of Claims

[1].Claimant mistakenly titled his proposed claim as a “Verified Complaint,” however, no prejudice ensued from this error. Thus, the Court treated the “Verified Complaint” as the proposed claim for the purposes of this late claim application.
[2].The appropriate time to seek a reduction of the filing fee pursuant to CPLR 1101(f) would be at that juncture as opposed to the present late claim application.