New York State Court of Claims

New York State Court of Claims

JOYCE v. THE STATE OF NEW YORK, #2008-040-045, Claim No. NONE, Motion No. M-74982


Synopsis


Motion by pro se inmate to file a late claim denied without prejudice as Movant failed to establish the appearance of merit.

Case Information

UID:
2008-040-045
Claimant(s):
ANTHONY JOYCE
Claimant short name:
JOYCE
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-74982
Cross-motion number(s):

Judge:
CHRISTOPHER J. McCARTHY
Claimant’s attorney:
Anthony Joyce, Pro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Belinda A. Wagner, Esq., AAG
Third-party defendant’s attorney:

Signature date:
July 14, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

For the reasons set forth below, Movant’s application to serve and file a late claim pursuant to Court of Claims Act § 10(6) is denied without prejudice.

The proposed claim, attached to the motion papers, alleges that, on August 1, 2007, Movant was in the Bare Hill Correctional Facility in Malone, New York (hereinafter Bare Hill) Annex yard playing ball when he was struck on the hand by a softball, causing injury to his left pinky. The proposed claim further alleges that, on August 2, 2007, Defendant disregarded its duty “by neglecting to administer proper medical care at Bare Hill.” Movant states that following the injury, he went to the Bare Hill medical clinic and was told he needed x-rays; that during August, 2007 x-rays were taken and he was advised that the x-rays were negative for “breaks or chipped bones”; that he returned to the clinic because he was in extreme pain and his finger was swollen ; the staff told him he was alright and told him to apply ice and take aspirin for pain; that a second set of x-rays were taken in August, 2007 which revealed “a broken and/or chipped bone of [Movant’s] left pinky”; that in April, 2008, he went for his first physical therapy session after the cast and pins were removed and he was advised he would have to see the doctor again because his “hand is not correct.”

Pursuant to Court of Claims Act § 10(6), it is within the Court’s discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. Since the proposed claim appears to assert either a cause of action for medical malpractice (CPLR §214-a, a two-year-and-six-month Statute of Limitations) or for medical negligence (CPLR § 214[5], a three-year Statute of Limitations), the motion is properly before the Court.

Next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979, 981 [1982]). However, the burden rests with Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).

The first factor to be considered is whether the delay in filing the claim was excusable. The Court finds Movant’s proffered excuse for the delay in timely filing and serving the claim - lack of knowledge of the Court’s filing requirements – is not a reasonable excuse (Modern Transfer Co. v State of New York, 37 AD2d 756 [4th Dept 1971]; Fowx v State of New York, 12 Misc 3d 1184[A] [Ct Cl 2006]). However, the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief (Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979, supra at 981).

The next three factors to be addressed – whether Defendant had notice of the essential facts constituting the claim, whether Defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant – are interrelated and will be considered together. Defendant neither claims lack of notice, lack of opportunity to investigate, nor that it will be substantially prejudiced by a delay in filing a claim. The State cannot use its silence as a shield against an allegation that it had notice of the essential facts constituting the claim (Cole v State of New York, 64 AD2d 1023, 1024 [4th Dept 1978]). These factors, therefore, weigh in Movant’s favor.

The fifth factor to be considered is whether Movant has another remedy available. It appears that Movant does not have any alternate remedy.

The sixth, final and perhaps most important factor to be considered is whether the proposed claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; Rosenhack v State of New York, 112 Misc 2d 967, 968 [Ct Cl 1982]; Flaherty Corp. v State of New York [New York State Parks & Recreation Div.], 102 Misc 2d 438, 440 [Ct Cl 1979]). It is Movant’s burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, supra at 11-12).

“It is fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons” (Rivers v State of New York, 159 AD2d 788, 789 [3d Dept 1990], lv denied 76 NY2d 701 [1990]). To maintain an action for injuries sustained while under the care and control of a medical practitioner and/or medical facility, “a party may proceed upon a theory of simple negligence, or upon the more particularized theory of medical malpractice” (Hale v State of New York, 53 AD2d 1025 [4th Dept 1976], lv denied 40 NY2d 804 [1976]).

“The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by [laypersons], or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts” (Miller v Albany Med. Ctr. Hosp., 95 AD2d 977, 978 [3d Dept 1983]; see Twitchell v MacKay, 78 AD2d 125, 127 [4th Dept 1980]).

To the extent the proposed claim alleges medical malpractice, the merit of the claim must be patently revealed by medical records or supported by an expert affidavit (see Matter of Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006]; Matter of Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002]; Rosario v State of New York, 8 Misc 3d 1007[A] [Ct Cl 2005]; Vespucci v State of New York, Claim No. 112571, Motion Nos. M-72230, M-72475, dated February 16, 2007, DeBow, J. [UID No. 2007-038-505]; Jackson v State of New York, Claim No. None, Motion No. M-72630, dated January 10, 2007, Mignano, J. [UID No. 2007-029-001]). The proposed claim alleges negligent acts relating to Movant’s medical treatment at Bare Hill. However, Movant has not submitted either his medical records or an expert affidavit stating that Defendant’s actions departed from the accepted standard of care (see Matter of Robinson v State of New York, 35 AD3d 948, supra at 950; Rosario v State of New York, 8 Misc 3d 1007[A], supra). In the absence of Movant’s medical records, the merit of any allegations of medical malpractice in his motion papers are not established. Further, in the absence of an expert affidavit, there is no support for his contention that Defendant committed medical malpractice, or that such alleged malfeasance or nonfeasance caused injury to him (see Schreck v State of New York, 81 AD2d 882 [2d Dept 1981]).

To the extent the proposed claim alleges medical negligence, it does not appear to the Court that the questions raised are within the usual experience and knowledge possessed by laypersons (see Matter of Perez v State of New York, 293 AD2d 918, supra at 919).

The Court concludes, however, that the interests of justice would be best served by permitting Movant to reapply for permission to file a late claim, if he so desires. On such re-application, he must establish that his cause of action for medical malpractice has the appearance of merit by the affidavit of an expert and/or medical records. The application, moreover, must be timely filed in compliance with the underlying two-year-and-six-month Statute of Limitations (CPLR § 214-a).

Accordingly, it is ORDERED that the motion be denied without prejudice to the right of Movant to reapply for the same relief.


July 14, 2008
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers were read and considered on Movant’s request for permission to serve and file a late claim pursuant to Court of Claims Act § 10(6):

Papers Numbered
Motion & Proposed Claim 1

Affirmation in Opposition 2