New York State Court of Claims

New York State Court of Claims

GLASER v. STATE OF NEW YORK, #2008-037-033, Claim No. NONE, Motion No. M-75179


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:
Charles Glaser, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: William D. LonerganAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 19, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


The following were read and considered with respect to Movant’s motion for permission to late file a claim:
  1. Notice of motion and supporting affidavit of pro se Claimant, Charles Glaser, sworn
to June 24, 2008, with annexed Exhibits 1-2;

  1. Opposing affidavit of Assistant Attorney General William D. Lonergan sworn to July
30, 2008, with annexed Exhibit 1.

By this motion, pro se Movant seeks leave to late file a claim pursuant to § 10 (6) of the Court of Claims Act. In his motion papers Movant generally alleges that he suffered medical complications, including atrial fibrillation, as the result of an overdose of prescription medication. Attached to Movant’s motion is a copy of a notice of intention to file a claim dated June 5, 2006. Only by reading this notice, can it be discerned that Movant was allegedly administered an increased dosage of the drug Reyataz on March 3, 2006 while incarcerated at Lakeview Correctional Facility, and that this alleged increase in medication caused the atrial fibrillation on March 11, 2006. Court of Claims Act § 10 (6) grants the Court discretion to permit the late filing and service of a claim upon consideration of all relevant factors, including: (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 to be meritorious; (5) whether substantial prejudice to the State resulted from the failure to timely file a claim; and (6) whether any other remedy is available. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court is afforded considerable discretion in determining whether to permit the late filing of a claim (Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979 [1982]; Ledet v State of New York, 207 AD2d 965 [1994]).

Movant alleges that the delay in filing a claim was excusable because he did not have access to legal assistance and because he was deprived of his personal property and subjected to transfers to various correctional facilities. Ignorance of the law and incarceration are not adequate excuses for failure to file and serve a claim within the statutory 90-day period of time (Holland v State of New York, Ct Cl, September 18, 2003, Lack, J., Claim No. None, Motion No. M-66837, UID # 2003-033-022;[1] Matter of Sandlin v State of New York, 294 AD2d 723 [2002], lv dismissed 99 NY2d 589 [2003]; Plate v State of New York, 92 Misc 2d 1033 [1978]). Moreover, Movant was able to serve a notice of intention to file a claim within the statutory period, effectively negating his excuse for the delay in filing a claim. This factor weighs against Movant’s motion.

The three factors of notice, opportunity to investigate and prejudice are intertwined and may be considered together (Brewer v State of New York, 176 Misc 2d 337 [1998]). Movant argues that Defendant had knowledge of the facts surrounding his claim by the timely service of the notice of intention and, thus, can suffer no prejudice by the late filing of a claim. The Court agrees. These factors weigh in favor of Movant’s motion.

Of the six statutory factors to consider, merit is the most decisive as it would be futile to permit a meritless claim to proceed (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [1977]). Movant has the burden of proving that the proposed claim, which must accompany a late claim motion, has the appearance of merit (Nyberg v State of New York, 154 Misc 2d 199 [1992]). Without a proposed claim, the Court is generally precluded from making any meaningful review of the merit of Movant’s application. Unfortunately, Movant’s present motion is not accompanied by a proposed claim. It is, however, accompanied by the notice of intention served on Defendant. In the interests of judicial economy, the Court will deem the notice of intention to be the proposed claim that must accompany a late claim application for purposes of this motion.

In the proposed claim Movant alleges that during his incarceration he was administered the drug Reyataz for treatment of HIV and that he suffered atrial fibrillation and other heart complications as a result of an increase in the dosage from 300 mg per day to 300 mg twice per day. Defendant argues, and the Court agrees, that these allegations sound in medical malpractice. Unfortunately, no medical evidence or copies of Movant’s medical records needed to substantiate these allegations accompanied the motion for late claim relief. Where, as here, the proposed claim is based on allegations of improper medical care, an expert affidavit must be submitted attesting to a deviation from the appropriate standard of care and establishing that the deviation was a proximate cause of the alleged injuries (Matter of Perez v State of New York, 293 AD2d 918 [2002]). Movant’s failure to submit an expert affidavit prevents the Court from determining whether the proposed claim is meritorious (Myers v State of New York, 46 AD3d 1030 [2007]; Wood v State of New York, 45 AD3d 1198 [2007]). Thus, this factor weighs against Movant’s motion.

Finally, Movant fails to address the final factor so it is impossible for the Court to determine if Movant has other remedies. This factor also weighs against Movant’s motion.

After considering and weighing all of the statutory factors enumerated in § 10 (6) of the Court of Claims Act, it is hereby

ORDERED, that Movant’s motion no. (M-75179) for permission to late file a claim is denied.

August 19, 2008
Buffalo, New York

Judge of the Court of Claims

[1]. This and other unreported Court of Claims decisions may be found on the Court’s website at