New York State Court of Claims

New York State Court of Claims



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:
Law Office of Richard L.Giampa, Esq., P.C.By: Richard L. Giampa, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Kent B. Sprotbery, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
July 9, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for permission to file a late claim alleging acts of medical malpractice and medical negligence. Defendant opposes the application on the basis that the claimant’s application is untimely under the applicable Statutes of Limitations and that it lacks merit.[1]

The Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim (Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). In making a determination to grant or deny such an application, the Court must determine whether the claim would be timely under the applicable Statute of Limitations and then consider certain statutory factors. These factors 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 state was substantially prejudiced; (5) whether the claimant has any other available remedy; and (6) whether the claim appears to be meritorious (Court of Claims Act §10[6]). The presence or absence of any one of said factors is not dispositive (Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s and Firemen’s Retirement Sys., 55 NY2d 979 [1982]). However, the last factor is the most decisive inasmuch as it is futile to proceed with a meritless claim even if the other factors support the granting of the claimant’s application (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]).

The claimant alleges that while he was an inmate at Shawangunk Correctional Facility, he was not properly treated or tested for testicular cancer when he visited the infirmary with complaints of an enlarged testicle and testicular pain on May 17, 2004. He claims to have been diagnosed with testicular cancer on July 20, 2004, and maintains that because he continued to treat with the medical personnel at Shawangunk Correctional Facility for said cancer until he was released on November 10, 2005, his time to file a claim did not start to run until November 10, 2005, making his filing of a claim on February 13, 2008, timely. Defendant disagrees and states that any alleged error in misdiagnosis on May 17, 2004, was rectified with the diagnosis on

July 20, 2004, such that any tolling would be from May 17, 2004, until July 20, 2004. On this issue, the Court finds for the claimant.

A claim generally accrues on the date of the alleged wrongful act or omission (see Nykorchuck v Henriques, 78 NY2d 255, 258 [1991]). However, under the doctrine of continuous treatment, the time is tolled until a claimant’s last treatment, “‘when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint’” (McDermott v Torre, 56 NY2d 399, 405 [1982], quoting Borgia v City of New York, 12 NY2d 151, 155 [1962]). The relevant issue is not whether there has been a diagnosis, but whether the ongoing treatment is related to the cancerous condition that gave rise to the lawsuit (Williams v Health Ins. Plan of Greater N.Y., 220 AD2d 343 [1st Dept 1995]). The claimant here indicates that his last treatment by the defendant was on November 10, 2005, a date which has not been disputed by the defendant. Accordingly, the Statute of Limitations for medical malpractice (two and one-half years/CPLR §214-a) would have expired on May 10, 2008, and the Statute of Limitations for medical negligence (three years/CPLR §214) will expire on November 10, 2008. Given that the claimant filed his claim on February 13, 2008, he is within the applicable Statutes of Limitations.

Since the Court has determined that the claim would be timely under the applicable Statutes of Limitations, the Court must now consider the statutory factors set forth in Court of Claims Act § 10(6).

The first factor is whether the delay in filing and serving the claim was excusable. The claimant alleges that he was unaware that his physician was working pursuant to a contract with the State of New York and that, as a result, he improperly commenced an action against him in Supreme Court. Such ignorance, however, is not excusable (see Erca v State of New York, 51 AD2d 611 [3d Dept 1976]), particularly where, as here, the claimant fails to state any credible reason for his mistaken belief other than to say that he was informed that the subject physician was a private doctor. Accordingly, this factor weighs against the granting of the claimant’s motion.

The three factors of notice, opportunity to investigate and prejudice are all intertwined and may be considered together. Although no notice was given to the defendant within the requisite 90 days of the accrual of the claim, the defendant was made aware of the facts of the claim on or about February 22, 2007, when the defendant physician was provided with a copy of the Summons and Complaint in the Supreme Court action. As such, the defendant could have conducted an investigation well in advance of the filing of the subject claim. Moreover, the defendant has not alleged that it did not have notice or an opportunity to investigate, or that it would be prejudiced if an extension was granted. Accordingly, these factors weigh in favor of granting the claimant’s motion (see Griffin v John Jay Coll., 266 AD2d 16 (1st Dept 1999).

As the claimant cannot commence an action against the State of New York in any court other than the Court of Claims, it is clear that the claimant has no other remedy available.

The final factor for the Court to consider is whether the claim appears to be meritorious. In order to establish a meritorious cause of action, the claimant has the burden of showing that the proposed claim is not patently groundless, frivolous, or legally defective, and the Court must find, upon a consideration of the entire record, including the proposed claim and any affidavits or exhibits, that there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).

To establish a medical malpractice claim, a party “must prove, by a preponderance of the evidence, a deviation or departure from accepted medical practice and that such departure was a substantial factor in producing [claimant’s] injuries” (Valentine v Lopez, 283 AD2d 739, 741 [3d Dept 2001]). “Expert medical opinion is required to demonstrate merit as to matters not within the ordinary experience and knowledge of laypersons” (Quigley v Jabbur, 124 AD2d 398, 399 [3d Dept 1986]; see also, Wood v State of New York, 45 AD3d 1198 [3d Dept 2007]). Although separate affidavits of merit, while helpful to the Court, are not generally required to accompany an application to file a late claim (Matter of Santana v New York State Thruway Auth., 92 Misc 2d at 11, supra), where the claim is based on alleged medical wrongdoing, such affidavits may be necessary, particularly to establish a causal connection (see Schreck v State of New York, 81 AD2d 882 [2d Dept 1981]. In some instances, detailed medical records, with no supporting affidavit, may suffice (DePaolo v State of New York, 99 AD2d 762 [2d Dept 1984]). However, if the medical records do not establish that the diagnosis and treatment rendered to the claimant by the defendant departed from accepted medical practices and standards, then expert medical evidence is required (Matter of Perez v State of New York, 293 AD2d 918 [3d Dept 2002]).

Here, the claimant has submitted, as exhibits, two one-page documents which set forth the dates upon which the claimant visited the infirmary and/or received treatment. They do not establish, however, that the treatment rendered was medically inappropriate or harmful, or untimely such that earlier treatment would have avoided the injuries allegedly sustained. Accordingly, expert medical evidence should have been submitted to support a claim for medical malpractice. Claimant’s failure to provide such expert medical evidence is a fatal flaw to establishing a meritorious claim on the theory of medical malpractice.

A cause of action sounding in medical negligence assumes that the claimant’s allegations are determinable on common knowledge alone, without the use of expert testimony  (Coursen v New York Hosp.-Cornell Med. Ctr., 114 AD2d 254, 256 [1st Dept 1986]). This theory, however, is very limited and only applies to cases in which the fault is so obvious that the trier of fact does not need an expert to explain why something is or is not standard medical procedure. In the present case, the alleged negligence in the diagnosis and treatment of the claimant cannot easily be determined without medical testimony. An expert opinion is necessary to substantiate the claimant’s conclusory allegations that the claimant should have been diagnosed with testicular cancer when he visited the infirmary on May 17, 2004, and that the delay in said diagnosis and/or the subsequent treatment rendered to the claimant caused injury.

Accordingly, the claimant’s motion for leave to file a late claim is denied.

July 9, 2008
Albany, New York

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion, filed April 18, 2008;

2. Affirmation of Richard L. Giampa, Esq., dated April 8, 2008, including Exhibits A-G annexed;

3. Affirmation in Opposition of Kent B. Sprotberry, Esq., dated May 5, 2008; and

4. Reply Affirmation of Richard L. Giampa, Esq., dated May 15, 2008, with Exhibits A-B annexed.

[1].In the absence of a motion to dismiss, this Court is unwilling to dismiss Claim # 114824.