New York State Court of Claims

New York State Court of Claims

FREEMAN v. THE STATE OF NEW YORK, #2008-033-285, Claim No. None, Motion No. M-74148


Synopsis



Case Information

UID:
2008-033-285
Claimant(s):
RODNEY FREEMAN
Claimant short name:
FREEMAN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-74148
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Rodney Freeman, Pro Se
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney GeneralBy: Paul F. Cagino, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 8, 2008
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a motion for permission to file a late claim brought by Rodney Freeman (hereinafter "movant") due to the alleged breach of contract, negligence and medical malpractice by the defendant, the State of New York (hereinafter “State”). The alleged breach of contract occurred on May 9, 2005, while movant was an inmate at the Willard Drug Treatment Campus, Ovid, New York. The alleged negligence occurred on May 9, 2005, when movant fell down steps at the Willard Drug Treatment Campus, Ovid, New York. The alleged medical malpractice took place from May 9, 2005 to the date of the motion, due to defendant’s failure to properly treat him while an inmate in the prison system.

First, movant seeks permission, pursuant to Court of Claims Act §10(5), to file a claim within two years of a disability being removed. Movant indicates that he has been mentally disabled since July 17, 2006. However, movant fails to include any affidavit from a medical expert indicating the he was unable to secure his claim due to a mental disability.

In the alternative, movant seeks permission to file a late claim against the State of New York pursuant to Court of Claims Act §10(6)[1].

In determining a motion seeking permission to file a late claim, the Court must consider the following six enumerated factors listed in Court of Claims Act §10(6): (1) whether the delay in filing 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 failure to serve and file a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; (5) whether the movant has another available remedy; and (6) whether the claim appears to be meritorious. The Court in the exercise of its discretion balances these factors, and, as a general rule, the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s and Firemen’s Retirement System, 55 NY2d 979).

While the presence or absence of any one of the six factors is not dispositive, (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s and Firemen’s Retirement System, id.), the most critical factor always is the apparent merit of the proposed claim. The movant need only establish that the proposed claim is not patently groundless, frivolous or legally defective and 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). If a movant cannot meet this low threshold and the claim is patently without merit it would be meaningless and futile for the Court to grant the application even if all the other factors in Court of Claims Act §10(6) weighed in favor of the movant’s request.

Since movant is seeking permission to file a late claim in a medical malpractice action, he must include a physician’s affidavit in support of his application. This affidavit is necessary to establish the allegations of deviations from accepted standards (see Jolley v State of New York, 106 Misc 2d 550; Favicchio v State of New York, 144 Misc 2d 212). A physician’s affidavit has not been included in the moving papers which is a well established requirement (see Colson v State of New York,115 Misc 2d 402; Schreck v State of New York, 81 AD2d 882; Matter of Edwards v State of New York, 119 Misc 2d 355, 357). Thus, the Court must deny movant’s request to file a late claim for medical malpractice.

Similarly, movant seeks to file a late claim for breach of contract. However, movant has failed to include a copy of the contract. It is incumbent upon movant, to show merit, that a contract exists between the parties. The Court denies movant’s request to file a late claim for breach of contract.
As to movant’s remaining contention of negligence, in regard to movant’s fall, the Court has reviewed the parties’ papers in support of and in opposition to the motion.

Based on the foregoing, the Court concludes that the statutory factors favor movant’s application and, therefore, grants permission to file a late claim for negligence based on claimant’s fall on May 9, 2005 (Jomarron v State of New York, 23 AD3d 527). Movant is directed to serve and file the proposed claim within forty-five (45) days of the filing date of this Decision and Order in accordance with §§10, 11 and 11-a of the Court of Claims Act.


April 8, 2008
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1].The following papers have been read and considered on movant’s motion: Notice of Motion dated September 30, 2007 and filed October 29, 2007; Affidavit in Support of Motion to Late File a Claim of Rodney Freeman with Annexed Exhibits sworn to October 17, 2007 and filed October 29, 2007; Affirmation in Opposition to Claimant’s Motion to Late File a Claim of Paul F. Cagino, Esq. dated November 20, 2007 and filed November 20, 2007; Reply To Defendant’s Affirmation in Opposition to Claimant’s Motion to Late File a Claim of Rodney Freeman with Exhibits A-B sworn to November 26, 2007 and filed December 4, 2007.