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
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 ).
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 ).
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