New York State Court of Claims

New York State Court of Claims

PEREZ v. THE STATE OF NEW YORK, #2008-015-074, Claim No. NONE, Motion No. M-75088


Motion for late claim relief in medical malpractice action was denied where movant failed to submit medical evidence in support of the claim and totality of factors weighed against granting the motion.

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:
Sergio Perez, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michele M. Walls, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 23, 2008
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movant, an inmate proceeding pro se, seeks late claim relief pursuant to Court of Claims Act § 10(6). The proposed claim[1] alleges in substance the following:
2.) This claim arises from the acts or omissions of the defendants. Details of said acts or omissions are as follow; Mt[.] McGregor Physician Michael Crook prescribed the Drug dsoran 125 mg. Upon taking the medication I was immediately overcome with dizziness, chest pain, blurry vision, weakness of the joints, and reported immediately to the infirmary I was rushed to the Albany Medical Center for treatment and I was kept in the Hospital for 6 days I continue to have the symptoms even after the medication has been changed and I continue to experience the dizziness, nausea and chest pain.
Although no accrual date is set forth in the proposed claim, movant contends in a reply affidavit that the claim accrued on March 10, 2008. [2]

Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following 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."

The first issue for determination upon a late claim motion is whether the application is timely. Subdivision 6 of Section 10 requires that a motion to file a late claim be made "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." The proposed claim asserts a medical malpractice cause of action for which the statute of limitations is 2 1/2 years (CPLR 214-a). Movant's motion is therefore timely.

Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965). The statutory factors are not exhaustive nor is any one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117 [1991]). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254 [1993]).

The excuse advanced by the movant for his failure to timely serve and file a claim is that he is not a lawyer and had no access to professional legal counsel. It is well settled, however, that neither ignorance of the law nor confinement in a correctional facility constitute acceptable excuses for delay in filing a claim (Olsen v State of New York, 45 AD3d 824 [2007]; Matter of Robinson v State of New York, 35 AD3d 948 [2006]).

On the intertwined issues of notice, opportunity to investigate and prejudice to the State, the movant states that medical personnel in the prison were aware of his illness and had the opportunity to investigate. Review of the medical records attached to the claim do not support this assertion. None of the records submitted reflect the nature of the movant's illness on March 10, 2008 or whether it was caused by the medication prescribed by Dr. Crook. From the scant facts presented it cannot be concluded that the State had notice of the essential facts constituting the claim, an opportunity to investigate or that it will suffer no undue prejudice in the event a late claim is permitted. These factors weigh against granting the motion.

The potential merit of a proposed medical malpractice claim must be established through the submission of medical evidence establishing a deviation from accepted medical practices and standards (Matter of Robinson v State of New York, supra; Matter of Perez v State of New York, 293 AD2d 918 [2002]; Matter of Gonzalez v State of New York, 299 AD2d 675 [2002]). Here, the medical records provided reflect no facts from which the Court could infer that medical malpractice occurred and no other medical evidence was submitted. As a result, the movant failed to establish that the proposed claim is not patently groundless, frivolous, or legally defective or that there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [1977]).
As to the final factor to be considered, it has not been suggested that an alternative remedy exists.

Upon consideration the factors enumerated in Court of Claims Act § 10 (6), the Court finds they weigh against granting the instant motion for late claim relief. Accordingly, the motion is denied.

September 23, 2008
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated June 3, 2008;
  2. Proposed claim with attachments;
  3. Affirmation of Michele M. Walls dated July 2, 2008;
  4. "Affirmation" in reply of Sergio Perez sworn to July 15, 2008.

[1]. Two nearly identical proposed claims have been submitted in support of the motion. The first is dated May 3, 2008 and is quoted. The second is undated. It appears that the Clerk accepted one of these claims for filing inasmuch as the movant submitted an affidavit of service of the claim together with the motion.
[2].It is not clear whether this date represents the date that the medication was prescribed by Dr. Crook or the date that the claimant first complained of the harmful effects of the drug.