New York State Court of Claims

New York State Court of Claims

MARTINEZ v. THE STATE OF NEW YORK, #2008-030-580, Claim No. NONE, Motion No. M-75792


Late claim motion denied. Motion never served on defendant. Additionally, underlying facts in proposed claim alleging inadequate medical care at correctional facility the same as those in claim already served and filed in the Court of Claims, and still pending. No motion to dismiss defenses nor motion to dismiss claim made. Finally, motion denied on merits because no 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:
December 12, 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:

1-5 Motion for Permission to File a Late Claim by Angel Martinez, Claimant; Claim No. 114728; Affidavit of Service of unspecified documents sworn to January 14, 2008; Affidavit of Service of Notice of Intention to File a Claim and Claim sworn to October 29, 2008; photocopy of certified mail receipt showing receipt of unspecified document by Attorney General’s Office on October 10, 2008

  1. Affirmation by Elyse J. Angelico, Assistant Attorney General and attached exhibits
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 of Claims

Act §10(6)] Angel Martinez is essentially resubmitting a claim that is already pending for which issue has been joined that might be jurisdictionally defective. [See 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[1] [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 explanation.

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.[2]

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.

December 12, 2008
White Plains, New York

Judge of the Court of Claims

[1]. Claimant actually indicates that the claim accrued at Mt. Vernon Hospital, but from the context it can be seen that the place of accrual was Sing Sing.
[2].In the second answer filed by the defendant on November 20, 2008, it is indicated that a claim was served on defendant on October 10, 2008.