New York State Court of Claims

New York State Court of Claims

WARREN v. THE STATE OF NEW YORK, #2007-045-007, , Motion No. M-72367


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:
Kenneth Warren, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: Michael C. Rizzo, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 30, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were reviewed by the Court on this motion: Notice of Motion, Affidavit in Support of Motion to Late File a Claim with Exhibits, a Claim and an Affidavit in Support of an Application for a reduction of filing fees, received on October 6, 2006, a second Notice of Motion; Affidavit in Support of Motion to Late File a Claim with Exhibits, including a copy of the notice of intention to file a claim, a Claim and an Affidavit in Support of an Application for a reduction of filing fees stamped received on October 16, 2006 and an Affidavit in Opposition to the Claimant’s Motion to Late File a Claim. Claimant, Kenneth Warren, a pro se litigant, moves this Court for leave to file a late claim pursuant to Court of Claims Act § 10(6). Claimant separately served and filed two almost identical copies of his motion with the Court and upon defendant, the State of New York, in this matter. The two copies differ only in that the second document, which was served upon defendant two days after the first, contains claimant’s notice of intention to file a claim. Defendant received the second document on October 12, 2006 and responded to the motion on October 23, 2006. Defendant concedes that it was served with claimant’s notice of intention to file a claim on February 16, 2005.

In his notice of intention to file a claim, claimant alleges that his injury occurred on November 14, 2004 at 1:30 p.m. in the Altona Correctional Facility gymnasium. He fails to provide any further details concerning the November 14, 2004 incident in his notice of intention.

However, the notice of intention continues that the claim:

“begins on Dec 2 2004 at Franklin C. F. Clinic when my requested xray examination was terminated before completion by facility technician. I was denied proper and adequate diagnostic evaluation prior to a delayed surgery, which was Dec 11 2004. Staff failed to forfill my scheduled appointment with the orthopaedic specialist. My full length leg cast was intended for 4 weeks, it stayed on 3 weeks longer than intended. The negligence prohibited me timely rehabilitating treatment that my leg desperately needed as reccomended. The effect of delayed surgery and the non-compliance to follow the surgeons instruction to remove my cast at the reccomended time, created a condition which may prohibit or deny me complete functional movement and usage of my knee for the rest of my life. My leg cast was removed Jan 28 2005. I am filing this under the Continuous treatment doctrine.”[1]

Claimant then filed a claim with the Clerk of the Court of Claims on October 6, 2006 which was assigned claim number 112852 by the Clerk. Claimant presented a copy of his filed claim as the proposed claim in this application. Defendant raised a number of jurisdictional defenses in its answer to claimant’s filed claim including improper service.[2]

In his proposed claim, claimant alleges that he injured his left knee while incarcerated at the Altona Correctional Facility on November 14, 2004 in the gymnasium of the facility. The proposed claim outlines the medical treatment claimant received for his injury at various correctional facilities. Claimant then alleges that defendant failed to properly diagnose or treat his injury. Claimant also asserts, inter alia, that defendant, through its agents, harassed him, engaged in retaliatory acts against him and violated his constitutional rights. In addition, claimant contends that a false misbehavior report was filed by one of defendant’s employees which resulted in his being improperly confined in “keeplock” for twenty days at the Clinton Correctional Facility. Damages in the amount of 1.7 million dollars are sought.

In support of his motion for late claim relief, claimant sets forth that he was unaware of the filing period required by the Court of Claims Act. He asserts that defendant had notice of the essential facts of his claim because on February, 16, 2005 he served a “Notice of Intent” on the Attorney General’s office, by certified mail return receipt requested. Claimant states that he believed that his claim accrued on December 2, 2004 and that by serving the notice of intention on February 16, 2005, it was served in a timely manner. He now contends that he was mistaken and that his claim actually accrued on November 14, 2004, thus necessitating the present application for late claim relief. He sets forth without elaboration that his claim is meritorious and that defendant has not been prejudiced. Finally, he states 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. The next three factors, notice, an opportunity to investigate and prejudice are interrelated and as such will be considered together. With respect to notice, claimant alleges that defendant had notice of the essential facts of his claim through the notice of intention. Defendant acknowledges that it was served with a notice of intention but asserts that it was untimely. The notice of intention was served only four days after the 90-day statutory time limitation expired. Nonetheless, not all of claimant’s present allegations were contained within the notice of intention to file a claim. The allegations in the notice of intention were limited to the negligence and medical malpractice claims raised therein. Thus, in regard to the medical malpractice and negligence claims the Court finds these factors to weigh in claimant’s favor (Cole v State of New York, 64 AD2d 1023 [4th Dept 1978], Fowx v State of New York, 12 Misc 3d 1184A [Ct Cl 2006]). However with respect to the remaining allegations first raised by claimant in this motion, the Court finds that their absence from the notice of intention substantially prejudiced defendant. Claimant failed to provide any notice of those claims in his notice of intention which impaired defendant’s opportunity to investigate the claims. Consequently, defendant’s first notification of the remaining claims was not until the claim numbered 112852 was filed almost two years after the subject incident. Therefore, these factors weigh in defendant’s favor for the remaining claims put forth by claimant in the present application.

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]).

Addressing the claims of negligence and medical malpractice the Court notes that “[t]he 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” (Matter of 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). Although claimant states that one of his causes of action is for negligence his allegations essentially relate to the adequacy of his diagnosis and treatment. 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” (Matter of 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.

Claimant next alleges that a false misbehavior report was taken into consideration at his disciplinary hearing, certain correctional rules were not followed by defendant and that his constitutional rights were violated.

The allegedly false misbehavior report was apparently taken into evidence at a disciplinary hearing which took place on or about December 3, 2004. Claimant also states that defendant violated Correction Law §§ 138(4) and 139 as well as 7 NYCRR §701.11.[3] Clearly, defendant is entitled to absolute immunity for the discretionary determinations reached in conjunction with the disciplinary hearing as well as the decision to file a misbehavior report (Arteaga v State of New York, 72 NY2d 212 [1988]).

Claimant asserts that the staff at the Clinton Correctional Facility harassed him in retaliation for the allegations made in the false misbehavior report and that his physical therapy was discontinued after he complained of pain during the sessions. It is well settled that there is no common-law cause of action to recover damages for harassment in the State of New York (Monreal v New York State Department of Health, 38 AD3d 1118 [3d Dept 2007]; Daulat v Helms Bros. Inc., 18 AD3d 802 [2d Dept 2005]). It appears as though most, if not all, of claimant’s allegations regarding retaliation occurred prior to October 6, 2005.

To the extent that claimant’s allegations suggest an intentional tort, claimant has one year from the date of accrual to make an application to file a late claim (see Court of Claims Act § 10[6]). As the motion to file a late claim was filed on October 6, 2006 the court is without jurisdiction to entertain any of the intentional tort allegations which occurred more than one year prior to that date.

Additionally, the Court of Claims should not imply a State Constitutional remedy when an adequate alternative remedy is available to claimant (Waxter v State of New York, 33 AD3d 1180 [2006]; Martinez v City of Schenectady, 97 NY2d 78 [2001]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]). Claimant could have sought review of the disciplinary hearing in an Article 78 proceeding brought in Supreme Court (Coleman v Goord, 39 AD3d 1048 [3d Dept 2007]; Matter of Burgess v Goord, 34 AD3d 948 [3d Dept 2006]; Matter of Nelson v Goord, 33 AD3d 1135 [3d Dept 2006]) or, as he did in this matter, filed a claim seeking various tort remedies in the Court of Claims.

Consequently, this Court holds that the proposed claim lacks the appearance of merit and determines that this factor, as well as the availability of alternative remedies, weighs against the granting of claimant’s motion.

Therefore, for the foregoing reasons, claimant’s motion to file a late claim is denied.

May 30, 2007
Hauppauge, New York

Judge of the Court of Claims

[1].Quote presented in its original uncorrected version.
[2].Although not raised by defendant and not reached by the Court in this Decision and Order, it appears that claimant may have served his original claim improperly.
[3].Correction Law § 138(4) provides that “[i]nmates shall not be disciplined for making written or oral statements, demands, or requests involving a change of institutional conditions, policies, rules, regulations, or laws affecting an institution.” Correction Law §139 provides for the commissioner to establish grievance procedures for each correctional facility. 7 NYCRR §701.11 is the Code of Ethics for the inmate grievance resolution committee.