New York State Court of Claims

New York State Court of Claims

BOWMAN v. THE STATE OF NEW YORK, #2008-016-004, Claim No. None, Motion No. M-74115


Synopsis


Late claim motion was granted.

Case Information

UID:
2008-016-004
Claimant(s):
LAWRENCE BOWMAN
1 1.The caption has been amended to reflect that the sole proper defendant is the State of New York.
Claimant short name:
BOWMAN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect that the sole proper defendant is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-74115
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant’s attorney:
Lawrence Bowman, Pro Se
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: James E. Shoemaker, Esq., AAG
Third-party defendant’s attorney:

Signature date:
February 8, 2008
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Lawrence Bowman, an inmate at Sullivan Correctional Facility, moves for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the “Act”). In his proposed claim,[2] Mr. Bowman alleges that in July of 2007, he suffered a back injury and headaches while participating in an outside work program moving newspapers and cardboard at a landfill facility in Monticello, New York. In order to determine this motion, six factors enumerated in the Act must be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.[3]

The first three factors – whether defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this motion are intertwined and may be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). In view of what follows, I find that these three factors have been met. Claimant attaches to his moving papers a copy of a letter he wrote to the Superintendent of Sullivan on September 10, 2007, which begins, “I wrote you in July to let you know that I’m suffering a [lower back] injury due to working at the [landfill facility in Monticello] as well as . . . [headaches] due to working without the proper work gear or training . . .” Also submitted by claimant is an August 30, 2007 response to a grievance he filed, which states, “[t]he I.G.R.C. Members recommend that inmate Bowman . . . be seen by the doctor immediately to determine the cause of his migraines. In addition an investigation should be conducted as to the conditions of the Sullivan County Landfill . . .”

With regard to an alternate remedy, a cause of action might lie against the landfill facility. As to excuse, claimant states that he is a “layman at law,” which is not an excuse for the purposes of the Act. See, e.g., Matter of E.K. (Anonymous) v State of New York, 235 AD2d 540, 652 NYS2d 759 (2d Dept 1997), lv denied, 89 NY2d 815, 659 NYS2d 856 (1997). Claimant also alleges that he “tried to file a Claim 30 days ago and discovered that his out-going mail has been tampered with . . .” Although this could serve as an excuse for the delay, claimant provides no supporting information.

The remaining factor to be considered is whether the proposed claim appears meritorious. As set forth above, claimant has included documentation referring to his having allegedly suffered a back injury and headaches while working at the landfill. While he will ultimately have the burden of proving at trial that the State’s negligence was the cause of any such injuries, for the purposes of this motion, and with regard to such allegations, I find that he meets the standard set forth in Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977): (I) the claim “must not be patently groundless, frivolous, or legally defective” and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, “there is reasonable cause to believe that a valid cause of action exists.”

It should be noted that claimant also alleges that he received inadequate medical treatment in connection with his injuries, however, he has submitted no affidavit from a physician regarding his medical treatment. There is authority that such is a condition precedent to a finding of merit on a late claim motion. See, e.g., Schreck v State of New York, 81 AD2d 882, 439 NYS2d 162 (2d Dept 1981); Favicchio v State of New York, 144 Misc 2d 212, 543 NYS2d 871 (Ct Cl 1989); and Jolley v State of New York, 106 Misc 2d 550, 434 NYS2d 122 (Ct Cl 1980). A number of appellate division cases have held that a physician’s affidavit is not necessary, but in such cases, claimants submitted medical records patently sufficient to show the appearance of medical malpractice. See Caracci v State of New York, 178 AD2d 876, 577 NYS2d 925 (3d Dept 1991); O’Shea v State of New York, Ct Cl filed November 5, 1999 (unreported, motion no. M-59853, Marin, J.), affd 278 AD2d 237, 717 NYS2d 293 (2d Dept 2000); and DePaolo v State of New York, 99 AD2d 762, 472 NYS2d 10 (2d Dept 1984). In the instant case, claimant has submitted no medical records and relies solely on his own statements. As such, he has failed to demonstrate the appearance of merit with regard to any alleged inadequate medical treatment.

In view of the foregoing, having reviewed the submissions[4], IT IS ORDERED that motion no. M-74115 be granted and that within forty-five (45) days of the filing of this Decision and Order, claimant shall serve and file his claim in compliance with Court of Claims Act §11 and §11-a. Such shall be entitled “Claim” and shall consist of the contents of the following documents which were annexed to claimant’s papers on this motion: “Notice of Intention to File Claim” and “Addition.” Any references contained therein to inadequate medical treatment shall be deemed excised.


February 8, 2008
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




[2]. With his moving papers, claimant submits a “Notice of Intention to File Claim” along with a document entitled “Addition.” For the purposes of this motion, the foregoing will be construed as Mr. Bowman’s proposed claim.
[3]. See Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement Sys. Policemen’s and Firemen’s Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
[4]. The Court reviewed claimant’s “Notice For Permission to File a Late Claim” with “Notice of Intention to File Claim,” “Addition,” and undesignated exhibits; and defendant’s “Affirmation in Opposition to Claimant’s Motion to File a Late Claim.”