New York State Court of Claims

New York State Court of Claims

CLAY v. THE STATE OF NEW YORK, #2008-041-002, Claim No. None, Motion No. M-74458


Application to file late claim alleging dental malpractice is granted as allegations provide cause to believe a valid cause of action exists and further, the defendant has not been substantially prejudiced by delay in prosecuting the claim.

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:
New York State Attorney GeneralBy: Saul Aronson, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 19, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for permission to file a late claim pursuant to Court of Claims Act § 10 (6).

Claimant is an inmate at Clinton Correctional Facility (Clinton). The proposed claim alleges that in the “summer of 2006,” defendant’s employee, a dentist identified by claimant as John Doe, “left pieces of my tooth in my gum after a tooth-extraction at Clinton C.F., so as to cause serious injury to the claimant.”

The proposed claim further alleges that in September of 2007, claimant felt pain where the tooth was extracted in 2006. He was seen by a different dentist who “took X-rays and found that there was still pieces of tooth in my gum from the tooth extraction in 2006.”

Court of Claims Act § 10 (6) provides that the Court, upon application and in its discretion, may permit the late filing and service of a claim “at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules.” Claimant’s cause of action sounding in dental malpractice is not time-barred by CPLR Article 2.

In determining the application, Court of Claims Act § 10 (6) provides that:
“[T]he court shall consider, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy.”

In reviewing a late claim application, “the Court of Claims is required to consider, among other factors, those enumerated in Court of Claims Act § 10 (6), no one factor being controlling” (Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]; see Matter of Duffy v State of New York, 264 AD2d 911, 912 [3d Dept 1999]). In fact, “[n]othing in the statute makes the presence or absence of any one factor determinative” (Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981 [1982]).

Further, “it is well settled that the Court of Claims’ broad discretion in this area should be disturbed only in the face of clear abuse” (Calco v State of New York, 165 AD2d 117, 119 [3d Dept 1991], lv denied 78 NY2d 852 [1991]).

Claimant fails to offer a reasonable excuse for the delay in filing the claim after learning of the alleged malpractice in September of 2007. Neither claimant’s alleged attendance at Family Court proceedings on unspecified dates in “October, November and December of 2007,” nor his claimed lack of “daily access to the facilities law library,” constitute a reasonable excuse for his failure to timely file the claim.

Defendant asserts that its “ability to perform a timely, appropriate investigation” has been impaired and that it would suffer prejudice if the late claim application is granted because of the filing delay and claimant’s failure to specify the exact dates of his dental treatment. The Court finds that the claimant’s medical and dental records, likely maintained at Clinton, but in any event readily available to the defendant regardless of where maintained, together with its ability to interview the employees involved, provide defendant ample opportunity to investigate the claim and to avoid any prejudice in defending the claim.

Claimant’s failure to specify the exact dates of his dental treatment at Clinton may be remedied by amendment of the proposed claim after claimant obtains his dental records.

Claimant has no available alternative remedy.

Section 10 (6) requires that the proposed claim not be “patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists” (Rizzo v State of New York, 2 Misc 3d 829, 833-834 [Ct Cl 2003]; see Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl 2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). In Witko v State of New York (212 AD2d 889, 891 [3d Dept 1995]), the court noted that a proposed claim offered in a section 10 (6) application need only have “the appearance of merit.”

Defendant has not offered an affidavit disputing the factual allegations of the proposed claim and the allegations are deemed true for purposes of this application (Schweichert v State of New York, 64 AD2d 1026 [4th Dept 1978]; Cole v State of New York, 64 AD2d 1023 [4th Dept 1978]).

The Court finds that the claim, alleging that defendant failed to fully extract claimant’s tooth, is not patently without merit and that, accepting the claimant’s allegations as true, provides cause to believe that a cause of action for dental malpractice exists.

Based upon a balancing of the factors set forth in section 10 (6), the Court grants the motion and claimant is directed to file and serve his claim in compliance with §§ 11 and 11-a of the Court of Claims Act within sixty (60) days of the filing of this decision and order with the Clerk of the Court of Claims.

February 19, 2008
Albany, New York

Judge of the Court of Claims

Papers Considered:

  1. Notice of Motion, filed January 22, 2008;
  2. Affidavit of Daniel Clay, sworn to January 15, 2008, and annexed exhibits;
  3. Affirmation of Saul Aronson, dated January 30, 2008.