This is a motion requesting permission to file a late claim pursuant to Court
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). Movant’s motion is timely (CPLR
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
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.