New York State Court of Claims

New York State Court of Claims

RODRIGUEZ v. THE STATE OF NEW YORK, #2008-030-574, Claim No. None, Motion No. M-75657


Motion for late claim relief denied. Claimant alleges Sing Sing personnel failed to provide him with adequate medical care and post operative treatment after knee surgery. No medical expert or medical records. Claim number 112974 previously dismissed on jurisdictional grounds.

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:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
November 6, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant’s motion for permission to

serve and file a late claim:

  1. Motion for Permission to File a Late Claim by Pedro Rodriguez, claimant and attached papers
  1. Affirmation in Opposition to Motion to file Late by Elyse Angelico, Assistant Attorney General and attached exhibits
3,4 Filed papers: Claim Number 112974 (dismissed August 28, 2008) and Claim Number 115867 (filed September 22, 2008)

Claimant alleges in his proposed claim that defendant’s agents at Sing Sing Correctional Facility [Sing Sing] failed to provide him with adequate medical care and postoperative treatment after knee surgery on or about July 28, 2005 at Mount Vernon Hospital and he suffered injury as a result. He asserts that the places where “the acts took place” were Mount Vernon Hospital and Sing Sing. These are the same or similar allegations as those asserted in Claim Number 112974 dismissed by this Court on jurisdictional grounds on August 28, 2008, [see Rodriguez v State of New York, UID # 2008-030-020, Claim No. 112974 (Scuccimarra, J., August 28, 2008)], and in Claim number 115867 filed in the Office of the Chief Clerk of the Court of Claims on September 22, 2008.

Mr. Rodriguez writes in support of the present motion that the incident underlying the claim occurred on July 28, 2005 and “also on August 8, 2008.”[1] [Motion for Permission to File a Late Claim by Pedro Rodriguez, ¶1]. In the proposed claim itself the only specific date of accrual alleged is July 29, 2005, although the descriptive paragraph could be generously interpreted as asserting lack of adequate treatment to the date of signing of the claim on or about September 3, 2008 and reads as follows:
“On July 28, 2005, I was transported by D.O.C.S. to Mount Vernon Hospital, were I under went Reconstructed knee syrgery on my right leg. The surgery I agreed upon was Arthroscopy surgery, which was performed by a Dr. Jonathan Holden, who was chosen by D.O.C.S. I was put under anesthesia for over three (3) hours, when I awoke my right leg was in a immoibilize, I was throwing up and I had the chill’s. The following morning less than (24) hours after the surgery I was Discharge. Given clutch and made to walk to a van not a medical vehicle, with no assistants from medical staff or D.O.C.S. offices. The Officer/Driver was careless, unprofessional and speeding while talking on his cell phone. Due to the unprofessionalism, disrespectfull, and careless manner of the Doctor, Medical Staff, D.O.C.S. Officers and Staff, I had to under go a second surgery to repair damage that done and left undone. I have numbness and pain constantly, walk around with a cane, and wear a knee brace. I have yet to receive one session of physical therapy. The medical treatment I received at Mount Vernon Hospital as well as Sing Sing Corr. Fac. is inadequate. (sic)” [Proposed Claim, ¶2].

In order to determine an application for permission to serve and file a late claim, the Court must consider, “among other factors,” the six factors set forth in Court of Claims Act §10(6). The factors stated therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; and (6) whether any other remedy is available.[2] The Court is afforded considerable discretion in determining whether to permit the late filing of a claim. See e.g. Matter of Gavigan v State of New York, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any particular factor is not dispositive Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New York, 288 AD2d 172 (2d Dept 2001).

Additionally, the motion must be timely brought in order to allow that a late claim be filed “. . . 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 civil practice law and rules . . .” Court of Claims Act § 10(6). Here, the applicable statute of limitations is two and one-half (2 ½ ) years [see Civil Practice Law and Rules §214-a], thus the motion is time barred based upon a date of accrual of July 29, 2005, although, as noted above, the proposed claim does assert that claimant has yet to receive some treatment as of (presumably) the date he signed the claim. In the same connection, however, the earlier claim dismissed by the Court [Claim No. 112974] might be viewed as having “cut off” matters as of the date of its filing as the “initiation of legal process” analogous to serving a notice of intention. [See e.g. Toxey v State of New York, 279 AD2d 927, 928 - 929 (3d Dept 2001), lv denied 96 NY2d 711 (2001)].

Accordingly, the present motion is not timely because it is brought more than three years after the date of accrual, and is denied for that reason alone with respect to any cause of action asserted that accrued more than two and one-half (2 ½) years ago.

More substantively, and setting aside the issue of timeliness of the motion, the claimant has nonetheless not established entitlement to late claim relief based upon a review of all the required statutory factors.

Mr. Rodriguez asserts that his placement in custody of the “New York City Corrections Department” from September 26, 2005 and in intervening times thereafter, including a period of being bedridden from July 29, 2005 to August 31, 2005 and “also” between August 8, 2008 to September 10, 2008, with no funds, and no access to “professional legal counsel in the law library” constitutes a reasonable excuse for his delay. [Motion for Permission to File a Late Claim by Pedro Rodriguez, ¶2]. He states that the defendant had notice of the essential facts because a State employee “approved” a surgery by an “incompetent doctor.” [Ibid. ¶3]. He avers he has no other remedy. [Ibid. ¶4].

His mere incarceration, and movement within the system, and the asserted difficulty in obtaining representation by counsel or otherwise conferring with counsel, does not constitute a reasonable excuse in the nature of a disability, or otherwise. See Plate v State of New York, 92 Misc 2d 1033, 1037-1039 (Ct Cl 1978). There must be some showing that the circumstances of his incarceration prevented claimant from taking effective steps to perfect his claim within ninety (90) days of its accrual, or contact an attorney. Bommarito v State of New York, 35 AD2d 458, 459 (4th Dept 1971). Hospitalization or convalescence during some part of the statutory period is not sufficient without more. Goldstein v State of New York, 75 AD2d 613 (2d Dept 1980). Indeed, in connection with the claim dismissed on August 28, 2008 the Court found that claimant had managed to serve a notice of intention upon the attorney general’s office within ninety (90) days of accrual, but had not served it by the proper means making it ineffectual. [See Rodriguez v State of New York, UID # 2008-030-020, Claim No. 112974 (Scuccimarra, J., August 28, 2008)].

Any lack of knowledge of the law or an inability to retain counsel do not constitute acceptable excuses. Innis v State of New York, 92 AD2d 606 (2d Dept 1983), affd 60 NY2d 654 (1983). The absence of an excuse, however, is but one of the factors to be considered, and does not necessarily preclude relief. Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, supra.

The closely related factors of notice, opportunity to investigate and prejudice to the State, are considered together. Although it has been more than three (3) years since the initial knee surgery underlying this claim, the State’s ability to investigate is not completely impeded to its prejudice by the passage of time alone since medical records would presumably document the course of treatment afforded to claimant. Since the reason that the earlier claim was dismissed however, was that the defendant was never served with a claim, such earlier attempts at litigating the matter do not provide notice to the State. Similarly, mere residence in a correctional facility is generally insufficient to provide notice, although in certain circumstances notice may be inferred if the occurrence would be noted and investigated in the normal course. Turner v State of New York, 40 AD2d 923 (3d Dept 1972);[3] cf. Wolf v State of New York, 140 AD2d 692 (2d Dept 1988);[4] Carmen v State of New York, 49 AD2d 965, 966 (3d Dept 1975).[5] On balance, however, these factors weigh against granting the motion.

The appearance of merit is viewed as the most important factor to consider in an application to serve and file a late claim. When the proposed claim asserts a cause of action requiring an expert opinion in order to be established, an affidavit of merit from a qualified expert should be included with the application. Perez v State of New York, 293 AD2d 918 (3d Dept 2002)[6]; Schreck v State of New York, 81 AD2d 882 (2d Dept 1981)[7]; Favicchio v State of New York, 144 Misc 2d 212, 214 (Ct Cl 1989)[8]; Jolley v State of New York, 106 Misc 2d 550, 551-552 (Ct Cl 1980)[9]; but, cf. DePaolo v State of New York, 99 AD2d 762 (2d Dept 1984).1[0]

In a medical malpractice claim, the Claimant has the burden of proof and must prove (1) a deviation or departure from accepted practice and (2) evidence that such deviation was the proximate cause of the injury or other damage. A cause of action is premised in medical malpractice when it is the medical treatment, or the lack of it, that is in issue. A claimant must establish that the medical caregiver either did not possess or did not use reasonable care or best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field. A medical expert’s testimony is necessary to establish, at a minimum, the standard of care. Spensieri v Lasky, 94 NY2d 231 (1999).

“Whether the claim is grounded in negligence or medical malpractice, ‘[w]here medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is a required element of a prima facie case’ (Wells v State of New York, 228 AD2d 581, 582 [1996], lv denied 88 NY2d 814 [1996]; see Duffen v State of New York, 245 AD2d 653, 653-654 [1997], lv denied 91 NY2d 810 [1998]).” Tatta v State of New York, 19 AD3d 817, 818 (3d Dept 2005), lv denied 5 NY3d 712 (2005); see also Myers v State of New York, 46 AD3d 1030 (3d Dept 2007)1[1]; Wood v State of New York, 45 AD3d 1198 (3d Dept 2007);1[2] Colson v State of New York, 115 Misc 2d 402 (Ct Cl 1982).1[3]

Here, claimant has not submitted an expert affidavit, nor has he presented any medical records. Without substantiation in medical records, for example, showing the time frames for any omissions in diagnosis or treatment, and, more significantly, without substantiation by a medical expert of the effect, if any, of delays in diagnosis or treatment, or choices of treatment, claimant has not established the appearance of merit for late claim purposes. There is no medical evidence on any medical issue and thus claimant has not established the appearance of merit of his claim.

“[W]hen the excuse offered for the delay is inadequate and the proposed claim is of questionable merit . . . (citations omitted)” the Court appropriately exercises its discretion to deny an application for late claim relief. Perez v State of New York, supra, at 919; see also Gonzalez v State of New York, 299 AD2d 675 (3d Dept 2002).

Accordingly, and after careful balancing and consideration of all the factors, the claimant’s motion for permission to serve and file a late claim [M-75657] is hereby in all respects denied.

November 6, 2008
White Plains, New York

Judge of the Court of Claims

[1]. The defendant has interpreted the August 8, 2008 date as the date for the second surgical procedure claimant refers to, however, the proposed claim does not indicate when any such second surgery occurred. [See Affirmation in Opposition to Motion to Late File, ¶4].
[2]. The Defendant has not opposed the motion on the ground of availability of another remedy, therefore this factor is presumed to weigh in claimant’s favor. Cole v State of New York, 64 AD2d 1023, 1024 (4th Dept 1978).
[3]. Not enough that State maintains facility.
[4]. Accident report prepared and State employee involved in accident.
[5]. Police accident report prepared and internal memoranda extant.
[6]. In proposed claim alleging that the misdiagnosis and inadequate treatment of a cancerous ulceration on his leg resulted in deformity and permanent injury, medical records alone insufficient in support of late claim motion. Expert medical evidence was required to show that the alleged inadequate treatment of ulcer was inadequate in the first instance, and that the ulcer was cancerous when examined, and how such failures are linked to the damages suffered.
[7]. Court of Claims abused discretion in allowing late claim to be filed in claim alleging medical malpractice where no affidavit by medical expert causally linking birth of brain damaged child to asserted malpractice submitted.
[8]. Opinion by medical expert without underlying basis for it - in this case the medical records the physician indicated he had reviewed - insufficient to establish appearance of merit in late claim motion.
[9]. An attorney’s affirmation by one experienced in medical malpractice litigation is not competent to establish the appearance of merit in application to file late claim alleging medical malpractice. Court did not rely on any other late claim factors in making determination to deny motion.
1[0]. Denial of inmate’s motion to file late claim abuse of discretion where medical records furnished established that he suffered from the medical conditions that the Motrin packaging literature advised precluded prescription of the drug, in a claim alleging medical malpractice based upon physician’s allegedly improper direction that inmate take Motrin. No medical affidavit needed to be furnished under these circumstances.
[1]1. Claimant failed to present expert testimony that ordering physical therapy, instead of surgery, or any other aspect of his medical care deviated from the appropriate standard of care, thus his claim was properly dismissed by the trial court.
1[2]. Appellate Division reversed trial court, saying medical expert testimony required. Trial court had concluded inmate had “proved his claim that he had been provided with improperly sized crutches despite a lack of expert medical evidence, because defendant's nursing staff had admitted in a medical record that the crutches were too short.”
1[3]. To establish the appearance of merit of a medical malpractice claim the claimant “must submit an affidavit or affirmation containing a showing of evidentiary facts by a physician competent to attest to the meritorious nature of the claim . . .”