New York State Court of Claims

New York State Court of Claims

MARTINEZ v. STATE OF NEW YORK, #2008-018-620, Claim No. NONE, Motion No. M-74472


Synopsis


Motion to file late claim denied. The circumstances in this case do not permit the Court to determine whether there is reasonable cause to believe that a valid cause of action without, at the very least, medical records and, more likely, an expert affidavit.


Case Information

UID:
2008-018-620
Claimant(s):
JOSE MARTINEZ
Claimant short name:
MARTINEZ
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-74472
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
JOSE MARTINEZPro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 21, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Movant brings this motion seeking permission to file a late claim pursuant to Court of

Claims Act § 10(6). Defendant opposes the motion.

The proposed claim seeks damages for the failure of the medical personnel at Gouverneur Correctional Facility (hereinafter Gouverneur) to properly evaluate and diagnose movant’s broken leg. Movant asserts that on July 6, 2007, he broke his leg and was taken to the infirmary at Gouverneur. Movant alleges that he was given Ibuprofen and crutches and told to go back to his dorm. He told the nurse that he couldn’t walk back to his dorm because he was in extreme pain. He thereafter returned to his dorm and he alleges that he was not seen by a doctor for five days. He was directed to walk back to the infirmary and when he tried he couldn’t do it because he was in so much pain. He alleges that he was given a misbehavior report as a result, which he appealed and it was ultimately reversed. Movant has attached a copy of the misbehavior report and the review of the superintendent’s hearing reflecting that the decision was reversed. No reasons for the reversal are set forth. Movant seeks $2 million in damages.

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]). The motion is timely (Court of Claims Act § 10[6]; CPLR 214-a).

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 indicates that the reason for his failure to timely serve a notice of intention or file and serve a claim in accordance with Court of Claims Act § 10 is excusable because he is not an attorney and had no access to legal counsel or an interpreter during the statutory period for filing. This is not a valid excuse (see Matter of Sandlin v State of New York, 294 AD2d 723 [ignorance of the law or without access to legal references insufficient excuse]; Musto v State of New York, 156 AD2d 962, [inability to secure legal counsel was not a sufficient excuse]; Peterson v State of New York, 84 Misc 2d 296, [imprisonment prevented access to legal advice was an insufficient excuse]; Rodrigues v State of New York, 143 AD2d 993, [inability to speak English not a sufficient excuse]; Erca v State of New York, 51 AD2d 611 [hospitalization following accident was an insufficient excuse]). This factor therefore 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 was aware of his “illness and condition” because of his stay at the infirmary as well as his outside medical visits (Movant’s “Motion for Permission to File a Late Claim” ¶3). Defendant’s awareness that movant was in pain and suffered an injury is not notice of any alleged wrongdoing. “Notice of the facts constituting the claim” referred to in the statute has been held to mean that the State is aware there will be, or is likely to be, litigation in the future (Block v New York State Thruway Auth., 69 AD2d 930). Movant has not presented any indication that the State had such notice. Nonetheless, the State should have all of the medical records for its treatment of movant. This would permit the State to identify witnesses and investigate the circumstances surrounding movant’s visits to the infirmary at Gouverneur thereby minimizing any prejudice.

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.) The basis for movant’s claim is the failure to adequately evaluate, diagnose and treat movant’s broken leg. Movant has attached no medical documentation and no expert medical affidavit asserting facts evidencing a meritorious cause of action (Colson v State of New York, 115 Misc 2d 402). The circumstances in this case do not permit the Court to determine whether there is reasonable cause to believe that a valid cause of action without, at the very least, medical records and, more likely, an expert affidavit (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; but compare, De Paolo v State of New York, 99 AD2d 762 [claimant’s medical records established condition which based upon the packaging literature of Motrin should have precluded the use of the drug]).

The final factor to be considered is whether movant has any other available remedy. Since movant is incarcerated and all of his medical treatment occurred at the direction of the State, there does not appear to be any other remedy available.

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


April 21, 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 Jose Martinez in support with attachments.
3. Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney General,

in opposition.