7,8,9 Filed Papers: Claim Number 114728, Answers to Claim Number 114728 filed
March 24, 2008 and November 20, 2008
In this motion for permission to serve and file a late claim [see Court
Act §10(6)] Angel Martinez is essentially resubmitting a claim that is
already pending for which issue has been joined that might be jurisdictionally
Claim Number 114728, filed January 22, 2008]. The already
filed claim and the proposed (identical) claim allege that defendant’s
agents at Sing Sing Correctional Facility
[hereafter Sing Sing] provided inadequate medical care after surgery at Mt.
Vernon Hospital. The underlying surgery to his left testicle occurred at Mt.
Vernon on or about June 1, 2007. Claimant avows he should have healed more
promptly, and that five (5) months after such surgery, on November 28, 2007, he
was advised he would require additional surgery to his left testicle. An
accrual date of January 14, 2008 is indicated in the claim without other
In the answers to claim number 114728, in addition to general denials,
defendant included affirmative defenses implicated here. In the answer dated
March 21, 2008, the eighth affirmative defense asserts that the court lacks
personal jurisdiction over the defendant because the claim was served by regular
mail, rather than personally, or by certified mail, return receipt requested, as
required. Other defenses avow the claim is untimely and that the court does not
have jurisdiction over all the defendants named in the claim.
There appears to have been some correspondence back and forth between the
claimant and the Office of the Chief Clerk of the Court of Claims regarding
proof of service of Claim Number 114728 upon the defendant. One document is
addressed to the Chief Clerk of the Court of Claims by the claimant and stamped
received on April 11, 2008, and is entitled “traverse response.”
This document, dated April 3, 2008, responds to the various affirmative
defenses contained in defendant’s answer to Claim Number 114728. A letter
to Mr. Martinez from the Chief Clerk dated April 17, 2008 indicating that the
office had received proof of service on the
Court of Claims - not the Attorney General’s Office - on March 31, 2008
and April 7, 2008 is the last item of correspondence reviewed by this Court
contained in the file.
The motion for permission to serve and file a late claim appears to also be a
response to the defenses raised in the answers, in anticipation that the already
filed claim might be dismissed, perhaps. Although claimant has filed two
affidavits of service presumably with regard to this motion one indicates
service of unspecified documents upon the Court of Claims, and the other
indicates service of a notice of intention to file a claim and a claim on the
Attorney General’s Office by mail on October 29, 2008. There is also a
photocopy of a certified mail, green card, indicating that something was
received in the Office of Legal Records for the Attorney General’s Office
on October 10, 2008.
Claimant indicates that any delay in filing his claim should be excused because
he is “an hispanic speaking person, . . . [is] unfamiliar with American
Law, . . . not a lawyer . . . had no access to professional legal counsel, or to
the prison law library during the statutory period for filing because of the
illness caused by the incident underlying this claim . . . ”, the State
had notice and an opportunity to investigate and he has no other available
remedy. [Motion for Permission to File a Late Claim by Angel Martinez,
¶¶ 2,3,4]. He notes that the claim is not time barred based upon a
date of accrual of January 14, 2008. [Ibid. ¶1].
In the affirmation in opposition to the motion for late claim relief, defendant
asserts that it has not been served with the motion. Such lack of service is
attested to by an employee of the Attorney General’s Office whose job is
to maintain mail records, who reports that no motion was ever received.
[Affirmation by Elyse J. Angelico, Assistant Attorney General, Exhibit B].
Motions for late claim relief - like any motion - must be served on the
defendant and filed with the Office of the Chief Clerk of the Court of Claims
with proof of service. See generally Court of Claims Act §9(9);
Civil Practice Law and Rules §§2211 and 2214; 22 NYCRR §206.9.
A motion is “made when a notice of the motion . . . is served.”
Civil Practice Law and Rules §2211; see also Jenkins v State of
New York, 119 Misc 2d 144, 145 (Ct Cl 1983). Since claimant has not
satisfactorily established that the motion for late claim relief was ever served
on the defendant, the motion is denied on this ground alone.
Additionally, a claim identical to the claim proposed is still pending.
Defendant has not made a motion to dismiss that claim, nor is it required to
make such motion having adequately raised waiveable defenses in its answer.
Court of Claims Act §11(c). Claimant has not moved to dismiss any of the
defenses either. Civil Practice Law and Rules §3211(b).
Finally, even viewing the late claim application on the merits, since the claim
appears to be asserting a cause of action for medical malpractice, and it is
thus a claim that would require a medical expert’s testimony to establish,
without an affidavit by a medical expert or a treating physician with medical
records attached the court cannot find that there appears to be merit to the
claim as one for medical malpractice. A cause of action is premised in medical
malpractice when it is the medical treatment, or the lack of it, that is in
issue. To establish a cause of action for medical malpractice, 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. Claimant must establish initially the standard of care
applicable by expert testimony. Spensieri v Lasky, 94 NY2d 231 (1999).
Claimant must also 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.
In contrast, “[s]imple negligence principles are applicable in those
cases where the alleged negligent act may be readily determined by the trier of
the facts based on common knowledge.” Coursen v New York
Hospital-Cornell Medical Center,114 AD2d 254, 256 (1st Dept 1986). If it is
negligence that is asserted, then whatever lack of care is alleged should be
capable of determination by a layperson without expert testimony.
Based on the foregoing, claimant’s motion for permission to serve and
file a late claim is in all respects denied.