NEWMAN v. THE STATE OF NEW YORK, #2008-044-555, Claim No. None, Motion No.
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
MICHAEL G. NEWMAN
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
CATHERINE C. SCHAEWE
MICHAEL G. NEWMAN, pro se
HON. ANDREW M. CUOMO, ATTORNEY
GENERALBY: Wendy E. Morcio, Assistant Attorney General
June 19, 2008
See also (multicaptioned
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
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 ). 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
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
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 ). 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
65 NY2d 65, 72 ). The applicable statute of limitations for
medical malpractice is 2½ years from the date of accrual (see
214-a]). Accordingly, this motion served on February 29, 2008 is timely with
respect to conduct which occurred on or after August 29,
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
4) the claim appears to be meritorious;
5) the failure to file or serve upon the attorney general a timely claim or
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
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 , lv dismissed 99
NY2d 589 ; Plate v State of New York, 92 Misc 2d 1033 ).
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 ). 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 ).
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 ). General allegations
of medical malpractice which are not supported by competent evidence are
insufficient (Torns v Samaritan Hosp., 305 AD2d 965, 966 ). 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 ). 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
HON. CATHERINE C. SCHAEWE
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.
. Claimant later states that he was informed
of the bacterial infection in July 2007 while incarcerated at Gowanda
. 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 ; Toxey v State of New
279 AD2d 927 , lv denied
96 NY2d 711 ; White v
277 AD2d 852 ).
. 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.