New York State Court of Claims

New York State Court of Claims

NEWMAN v. THE STATE OF NEW YORK, #2008-044-555, Claim No. None, Motion No. M-74657


Claimant’s motion for permission to file/serve late claim denied. Because inmate failed to include pertinent medical records in proposed claim for medical malpractice, court was unable to weigh factors of notice, opportunity to investigate, prejudice, or merit. Motion also lacked necessary expert affidavit.

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:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Wendy E. Morcio, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 19, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, moves for permission to file “the attached notice of intention to file a claim . . . pursuant to the provisions of [Court of Claims Act § 10 (6)] for filing a late claim” based upon the alleged failure of defendant State of New York (defendant) to provide adequate medical care to him while he was incarcerated. Defendant opposes the motion.

Under the circumstances herein, the Court cannot treat the proposed notice of intention to file a claim as an actual notice of intention, because it was not timely served upon the Attorney General. In order to recover damages for personal injuries caused by the negligence of an officer or employee of the State, a claim or a notice of intention to file a claim must be served upon the Attorney General within 90 days after the accrual of such claim (Court of Claims Act § 10 [3]). Claimant asserts that defendant’s negligent conduct occurred from March 8, 2004 through November 11, 2006, while he was allegedly suffering from an undiagnosed and/or untreated lower respiratory tract infection.[1] Clearly the proposed notice of intention attached to claimant’s motion papers is untimely with respect to defendant’s conduct, all of which occurred more than 90 days prior to service of the motion papers upon defendant on February 29, 2008. Thus, the proposed notice of intention cannot constitute a notice of intention to file a claim.

Further, Court of Claims Act § 10 (6) sets forth the procedure whereby a claimant may request permission from the Court to serve and file a late claim. There is no such equivalent provision whereby a proposed claimant might seek permission to file a late notice of intention. However, claimant has cited this section of the statute, and the Court will exercise its discretion to treat this motion as one to file and serve a late claim and will conduct the appropriate analysis to determine whether permission should be granted.

A motion seeking permission to file and serve a late claim must be brought within the statute of limitations period attributable to the underlying cause of action (Court of Claims Act

§ 10 [6]). Claimant alleges that he suffered from a bacterial infection from March 2004 until it was discovered in a urine sample taken in July 2007. These allegations essentially contend that the medical staff failed to properly diagnose and treat him. Because this allegedly wrongful conduct “constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician,” the cause of action is for medical malpractice rather than negligence (Bleiler v Bodnar, 65 NY2d 65, 72 [1985]). The applicable statute of limitations for medical malpractice is 2½ years from the date of accrual (see CPLR 214-a]). Accordingly, this motion served on February 29, 2008 is timely with respect to conduct which occurred on or after August 29, 2005.[2]

Having determined that the motion is timely with regard to a portion of the allegations contained therein, the Court turns to a consideration of the merits of the motion itself. The factors that the Court must consider under Court of Claims Act § 10 (6) in determining a motion to permit a late filing of a claim are whether:

1) the delay in filing the claim was excusable;

2) defendant had notice of the essential facts constituting the claim;

3) defendant had an opportunity to investigate the circumstances underlying the claim;
4) the claim appears to be meritorious;

5) 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 defendant; and

6) claimant has any other available remedy.

Claimant asserts that the delay in filing a claim was unintentional because he is a “novice” to the Court of Claims, and mistakenly believed that he was required to exhaust his administrative remedies by first filing a grievance concerning the medical care which he had received.[3]

Claimant’s ignorance of the requirements of the Court of Claims Act and his incarceration are not adequate excuses for his delay in timely serving a notice of intention or timely filing and serving a claim (see 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]). Claimant’s reliance on Prisoners’ Legal Services of New York (PLS) – notwithstanding that it (PLS) apparently did not anticipate a medical malpractice claim when first contacted by claimant – is also insufficient to justify the delay (see e.g. Frayer v State of New York, Ct Cl, June 12, 2002, Minarik, J., Claim No. None, Motion No. M-64399 [UID # 2002-031-019]). Accordingly, this factor weighs against claimant.

The three factors of notice of the essential facts, an opportunity to investigate and the lack of substantial prejudice are frequently analyzed together since they involve similar considerations. Defendant admits that the State has possession of claimant’s medical records, but argues that because counsel does not currently possess those records, she cannot determine whether defendant had notice of the facts of the proposed claim. Defendant contends that the State may be prejudiced because the alleged negligent conduct took place over two years ago, and medical staff may no longer be employed by the Department of Correctional Services, or their memories may have faded.

Claimant has not submitted any portion of his medical records to the Court. Claimant apparently filed a grievance concerning his medical treatment, but has not provided a copy of that determination as well. Without these documents, the Court cannot address the issue of whether defendant had notice of the essential facts of this claim, an opportunity to investigate, or whether there would be any prejudice to defendant. Claimant has the burden of proving that these elements have been satisfied, and he has not done so. Accordingly, these three factors weigh against claimant.

Another factor to be considered is whether claimant has any other available remedy. Again, the Court is not privy to information contained in claimant’s medical records, and therefore cannot determine whether alternate remedies such as a malpractice action against outside medical personnel may exist. This factor must also weigh against claimant.

The issue of whether the proposed claim appears meritorious is the most crucial component in determining a motion under Court of Claims Act § 10 (6), since it would be futile to permit a meritless claim to proceed (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [1977]). In order to establish a meritorious claim, a claimant must demonstrate that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (id. at 11). There is a heavier burden on a party moving for permission to file a late claim than on a claimant who has complied with the provisions of the Court of Claims Act (see id. at 11-12; see also Nyberg v State of New York, 154 Misc 2d 199, 202-203 [1992]).

In order to establish the appearance of merit in a medical malpractice claim, claimant must established that defendant departed from the accepted standard of medical care, and that said departure was a proximate cause of the injury (Mullally v State of New York, 289 AD2d 308 [2001]). General allegations of medical malpractice which are not supported by competent evidence are insufficient (Torns v Samaritan Hosp., 305 AD2d 965, 966 [2003]). In this case, an expert’s affidavit is required to support claimant’s contention that medical staff should have performed a urinalysis earlier to diagnosis his condition (see Matter of Perez v State of New York, 293 AD2d 918, 919 [2002]). Due to his failure to submit both his medical records and an expert affidavit, claimant has not established the appearance of merit. Accordingly, this factor also weighs against claimant.

All six statutory factors - including the crucial factor of merit - clearly and substantially weigh against claimant. Accordingly, claimant’s motion for permission to file and serve a late claim is hereby denied, without prejudice.

June 19, 2008
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motion:

1) Motion filed on March 6, 2008, and attached exhibits.

2) Affidavit in Opposition of Wendy E. Morcio, Assistant Attorney General, sworn to on April 3, 2008.

[1]. Claimant later states that he was informed of the bacterial infection in July 2007 while incarcerated at Gowanda Correctional Facility.
[2]. Although the continuous treatment doctrine may, under certain circumstances, encompass conduct which occurred more than 2½ years prior, that doctrine does not appear to be applicable in the instant matter. Claimant alleges that by ignoring his complaints and symptoms, the Department of Correctional Services (DOCS) failed to render a timely diagnosis and establish a proper course of treatment, but under the law that would not constitute continuous treatment (see Young v New York City Health & Hosps. Corp., 91 NY2d 291, 297 [1998]; Toxey v State of New York, 279 AD2d 927 [2001], lv denied 96 NY2d 711 [2001]; White v Murphy, 277 AD2d 852 [2000]).
[3]. Claimant apparently contacted Prisoners’ Legal Services of New York (PLS) about “obtaining better medical care for [his] bacterial infection and taking legal action against medical staff for improper treatment of [that] condition.” PLS sent claimant a memorandum “on self-help remedies for medical care in prison” and advised him to exhaust his administrative remedies by filing and pursuing a grievance to final determination by the Central Office Review Committee. By letter dated January 24, 2008, PLS returned certain documents to claimant, advising that it would not be able to assist him, as it did not handle that type of matter. PLS further advised that because he was seeking monetary compensation, claimant would need to file a lawsuit and included a memorandum on how to file a Notice of Intention.