New York State Court of Claims

New York State Court of Claims

Herrick v. STATE OF NEW YORK, #2008-018-616, Claim No. None, Motion No. M-74285


Synopsis


No medical documents were included in the motion to support Movant’s assertion, nor is there any medical connection between her current claim of permanency and Defendant’s care or lack thereof. No expert medical affidavit was provided asserting facts evidencing a meritorious cause of action (Colson v State of New York, 115 Misc 2d 402). Upon balancing all of the factors in the Court of Claims Act § 10(6), this Court DENIES the motion without prejudice.

Case Information

UID:
2008-018-616
Claimant(s):
KAREN HERRICK
Claimant short name:
Herrick
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-74285
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
LAW OFFICES OF ELMER ROBERT KEACH, III, PC By: Elmer Robert Keach, III, Esquire
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: Heather R. Rubinstein, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 7, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a motion requesting permission to file a late claim pursuant to Court of Claims

Act § 10(6). Defendant opposes the application.

A proposed claimant who fails to timely file and serve a claim or serve a notice of intention may be permitted, upon application and in the discretion of the Court, to file a claim which complies with § 11 of the Court of Claims Act, at any time before an action asserting a like claim against a citizen of the State would be barred under the provisions of article two of the CPLR (Court of Claims Act § 10[6]). Movant’s motion is timely (CPLR 214-a).

Pursuant to Court of Claims Act § 10(6), a proposed claim containing all of the information required by Court of Claims Act § 11 must accompany any late claim application. Movant has provided a proposed claim in which it is alleged that the claim accrued from November 27, 2005 through January 3, 2006, while Movant was incarcerated at Willard Correctional Facility (hereinafter Willard). Movant was released from the Department of Correctional Services on January 3, 2006, and alleges that she tore cartilage in her knee while exercising at Willard on November 27, 2005. Movant asserts that she repeatedly sought medical treatment at Willard but was denied appropriate medical or diagnostic treatment. After her discharge, Movant learned of the severity of her injuries and alleges that as a result of the delay in treatment, she has suffered permanent loss of function of her leg. Movant has attached copies of her medical records from Willard to her application for late claim relief. The medical records reflect repeated complaints of knee pain. An x-ray was ordered on December 12, 2005.

To determine whether an application for permission to file a late claim should be granted, consideration must be given to the six factors listed in Court of Claims Act § 10(6), and any other relevant factors. The presence or absence of any one factor is not determinative (Bay Terrace Cooperative Section IV, Inc., v New York State Employees’ Retirement System, Policemen’s and Firemen’s Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965). Instead it is a balancing of all of the factors by the Court which may warrant the granting of the application to file and serve a late claim.

Movant does not really assert any excuse for failing to timely commence the Court of Claims action. Although she states that she retained an attorney after the 90 days within which to timely commence an action or serve a notice of intention expired, she offers no reasonable excuse for her delay. This factor weighs against granting Movant’s application.

Turning to whether the State had notice, an opportunity to investigate the facts underlying the proposed claim, or whether the State would suffer prejudice if the application was granted, these factors being interrelated will be considered together. Movant asserts that the State had notice of the essential facts when she made timely and repeated complaints to the infirmary regarding the pain and discomfort she was experiencing in her knee. Movant had no prior history for any injuries or problems. Movant also asserts that she repeatedly requested medical assistance for her problem and even wrote the supervising nurse to complain about the lack of medical care. No copy of this correspondence was provided.

Although the State may have been on notice of Movant’s knee pain and her position that she wanted more done, there is no indication that the State was made aware that she was later allegedly diagnosed with a torn cartilage. Without notice of the failure to diagnose or the alleged improper treatment, the State had no opportunity to investigate. Yet, there are certainly medical records from Movant’s visits to the infirmary which should permit the State to identify witnesses, and investigate the circumstances surrounding this claim now minimizing any potential prejudice to the granting of this application.

The next factor, whether the claim appears to be meritorious is referred to as the most essential factor. Unlike a party who has timely filed a claim, one seeking permission to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199). Generally a proposed claim meets this standard if it is not patently groundless, frivolous, or legally defective, and upon consideration of the entire record there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11). Movant alleges that after she left the custody of the Department of Correctional Services, she was diagnosed with torn knee cartilage. She argues that the treatment that she received at Willard was clearly inappropriate in light of her later diagnosis. No medical documents support Movant’s assertion, nor is there any medical connection between her current claim that her injuries are permanent and Defendant’s care or lack of care. Movant has attached medical records only from Willard, no expert medical affidavit was provided asserting facts evidencing a meritorious cause of action (Colson v State of New York, 115 Misc 2d 402). It is impossible to say without an expert affidavit or affirmation whether it was a deviation from the standard of care which caused her permanent knee problems (see Schreck v State of New York, 81 AD2d 882; Colson v State of New York, supra; Favicchio v State of New York, 144 Misc 2d 212). Therefore, this factor weighs against granting this motion.

The final factor to be considered is whether Movant has any other available remedy. Movant’s counsel asserts that there is no other remedy. It appears that she may not have any other options for relief.

Upon balancing all of the factors in the Court of Claims Act § 10(6), this Court DENIES the motion without prejudice.



April 7, 2008
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:

1. Notice of Motion.

2. Unsworn affidavit of Elmer Robert Keach, III, Esquire, in support, dated November 27, 2007, with exhibits attached thereto.

3. “Affirmation” of Karen Herrick, in support sworn to November 20, 2007.

4. Affirmation in opposition of Heather R. Rubinstein, Esquire, Assistant Attorney General, with exhibits attached thereto.