New York State Court of Claims

New York State Court of Claims

BRYANT v. THE STATE OF NEW YORK, #2008-030-575, Claim No. None, Motion No. M-75604


Late claim motion denied. No appearance of merit to claim alleging that changes in prescribed medication caused harmful side effects, in the absence of medical records and an expert affidavit. Late claim motion denied. No appearance of merit to claim alleging that changes in prescribed medication caused harmful side effects, in the absence of medical records and an expert affidavit.

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 10, 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:

1,2 Motion for Permission to File a Late Claim by John Bryant, claimant and attached papers

  1. Affirmation by Elyse J. Angelico, Assistant Attorney General and attached exhibits
  1. Filed papers: Claim Number 113399 (dismissed August 28, 2008)
John Bryant alleges in his proposed claim that defendant’s agents at Sing Sing Correctional Facility failed to provide him with adequate medical care. [See proposed Claim ¶2]. More specifically, he asserts that he suffers from harmful side effects from a change in his prescription medication, made approximately two years[1] after he had been consistently treated (successfully) with a different medication, for Hepatitis C. [Id.]. He alleges a date of accrual of February 27, 2007 in a separate paragraph. [Ibid. ¶4]. This is the same claim as the one dismissed by this Court on jurisdictional grounds on August 28, 2008, [see Bryant v State of New York, UID # 2008-030-021, Claim No. 113399 (Scuccimarra, J., August 28, 2008)].[2]

Mr. Bryant writes in support of the present motion that it is timely based on a date of accrual of February 27, 2007, that his delay in filing is excusable because he is not a lawyer, and had no access to professional legal counsel or the law library during the statutory period for filing because of the illness from which he suffered that is the subject of this claim. [Motion for Permission to File a Late Claim, ¶¶ 1, 2]. He asserts that the State had notice of the essential facts because medical personnel were aware of his illness, and the State had the opportunity to investigate because they could review medical treatises concerning medications. [Ibid. ¶¶ 2, 3]. Finally, he asserts he has no other remedy. [Ibid. ¶4].

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.[3]

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 timely based upon a date of accrual of February 27, 2007.

As an initial matter, the defendant argues that it was not served with these motion papers, and seeks denial on that basis alone. [See Affirmation by Elyse J. Angelico, ¶5, Exhibit F]. Accordingly, the present motion is denied for that reason alone.

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

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). 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 two (2) years since the change in medication, the State’s ability to investigate is not impeded to its prejudice by the passage of time since medical records would presumably document the course of treatment afforded to claimant. On balance, these factors weigh toward granting claimant’s 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)[4]; Schreck v State of New York, 81 AD2d 882 (2d Dept 1981)[5]; Favicchio v State of New York, 144 Misc 2d 212, 214 (Ct Cl 1989)[6]; Jolley v State of New York, 106 Misc 2d 550, 551-552 (Ct Cl 1980)[7]; but cf. DePaolo v State of New York, 99 AD2d 762 (2d Dept 1984).[8]

Thus, 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. Certainly the efficacy of a given prescribed medication, and choices of treatment for an infectious disease are matters requiring medical knowledge. 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)[9]; Wood v State of New York, 45 AD3d 1198 (3d Dept 2007);1[0] Colson v State of New York, 115 Misc 2d 402 (Ct Cl 1982).1[1]

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 changes in medication or treatment choices 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-75604] is hereby in all respects denied.

November 10, 2008
White Plains, New York

Judge of the Court of Claims

[1]. The claim mentions that he was initially prescribed medication in July 2005 for a period of one (1) year, and that “a few months into” his treatment it was changed.
[2].According to the Office of the Chief Clerk, after dismissal of claim number 113399 it appears that claimant served another copy of the same claim - with the same claim number on the Attorney General’s Office. The Attorney General’s Office answered the claim, noting that it had already been dismissed. Claimant did not, however, serve this motion for permission to serve and file a new claim upon the Attorney General. The file for claim number 113399 is and remains closed. No new documents should be filed with that claim number, but for any notice of appeal which, at this point, is likely untimely in any event.
[3]. 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).
[4]. 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.
[5]. 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.
[6]. 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.
[7]. 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.
[8]. 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.
[9]. 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[0]. 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]1. 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 . . .”