The following papers were read and considered on these motions:
Claimant’s Notice of Motion, Claimant’s Affidavit in Support of
Motion for Leave to Serve “Amended Complaint” with annexed
documents, Defendant’s Notice of Cross-Motion, Defendant’s
Affirmation with annexed Exhibits A-C, Claimant’s “Notice of
Counter/Cross-Motion to File a Late Claim, Claimant’s “Affidavit in
Support of Motion to Late File a Claim (Cross/Counter),” Claimant’s
“Notice of Counter Cross-Motion to Correct Mistake, Omission, Defect of
Irregularity,” Claimant’s “Affidavit in Support of
Counter/Cross-Motion to Correct Omission, Defect or Irregularity,”
Defendant’s Affirmation in Opposition and Claimant’s Reply to
Defendant’s Affirmation in Opposition.
Claimant, Nehemiah Nash, a pro se
inmate, brought motion, M-74050, to
amend the filed claim
in this matter to
“the form of the proposed Amended Verified Complaint,” to add
certain defendants and to increase the amount of damages claimed. In response,
defendant, the State of New York, has served and filed a cross-motion, CM-74211,
seeking dismissal of the action on the grounds that the claim was not properly
served as required by Court of Claims Act § 11. Defendant contends that
the claim in this matter was served on the Office of the Attorney General on
February 9, 2006 by regular mail. The claim was filed with the Court on
February 27, 2006 and assigned claim number 112015 by the Chief Clerk of the
The Court of Appeals has long held that “suits against the State are
allowed only by the State’s waiver of sovereign immunity and in derogation
of the common law [and that because of this] statutory requirements conditioning
suit must be strictly construed” (Dreger v New York State Thruway
Authority, 81 NY2d 721, 724 ). Accordingly, claimants who have not met
the service requirements of the Court of Claims Act have not properly commenced
their actions (Lichtenstein v State of New York, 93 NY2d 911 ).
Court of Claims Act § 11(a) provides, in relevant part, that a copy of the
claim “... shall be served upon the attorney general within the times
hereinbefore provided for filing with the clerk of the court either personally
or by certified mail, return receipt requested...” Defendant has
submitted a photocopy of the envelope in which the claim was served which
evinces postage in the amount of $ .39 (see Def Exh B). Claimant does not
dispute that the claim was served by regular mail but instead filed two
cross-motions, CM-74250 and CM-74462, seeking, inter alia, permission to
file a late claim and permission to treat the notice of intention as a claim.
The requirement that defendant be served in accordance with Court of Claims Act
§ 11 was not met as the claim in this matter was served by ordinary
mail. Consequently, defendant’s cross-motion, CM-74211 to dismiss the
claim is granted. Additionally, claimant’s motion, M-74050, is denied as
Turning to claimant’s cross motions, the Court will initially address
claimant’s request to treat his notice of intention as a claim.
In claimant’s notice of intention he stated that the claim arose in March
2004 and “has been a continuing cause of action up until September
2005.” Claimant alleges that during the aforementioned time period while
he was incarcerated at various facilities he complained of tooth problems.
Claimant states that he saw a dentist at the Southport Correctional Facility and
an x-ray of the “infected area” was performed. Claimant was
prescribed pain medication for the “impurity in question.” Root
canal was performed sometime between December 2004 and February 2005. Claimant
was then transferred from the Southport Correctional Facility to the Clinton
Correctional Facility in March 2005 where he was given antibiotics. On May 24,
2005 claimant was transferred from the Clinton Correctional Facility to the
Central New York Psychiatric Center where he again complained about this tooth.
He was informed by doctors and nurses there that they did not have a dentist at
the facility. Claimant alleges that over the next three months he complained
about his pain in writing to Central New York Psychiatric Center officials but
was referred back to the medical staff for help. Claimant then states that he
was not examined by a medical provider, he was not given pain medication and not
allowed to speak to an outside dentist.
On August 24, 2005, claimant was transferred from the Central New York
Psychiatric Center to the Sullivan Correctional Facility where he again
addressed the issues surrounding his tooth. Claimant received pain medication
at that time. In September 2005, claimant was referred to an outside oral
surgeon at the Coxsackie Correctional Facility who performed an
“apioectomy” [sic]. Significantly, claimant does not provide
a specific date when the surgery took place.
Claimant states he was injured by the lack of medical attention given to him at
the Southport Correctional Facility as well as the Central New York Psychiatric
Center. He alleges that defendant’s actions may have caused or worsened
CCA § 10(8) provides that a claimant who timely serves a notice of
intention but who fails to timely serve or file a claim may, nevertheless, apply
to the court for permission to treat the notice of intention as a claim. CCA
§ 10(8) states that the court shall not grant the application unless: it is
made upon motion 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; the notice of intention was timely served, and contains
facts sufficient to constitute a claim; and the granting of the application
would not prejudice the defendant.
The notice of intention was served upon defendant on December 23, 2005. CCA
§ 10 requires that a notice of intention be served within ninety days from
the date the claim accrued. Claimant has failed to provide a specific date in
September 2005 that he underwent the oral surgery. Thus, the Court is unable to
determine whether the notice of intention was served within ninety days of the
date his claim accrued. Consequently, claimant’s motion for permission to
treat the notice of intention as a claim is denied.
Claimant has also brought a motion seeking permission to file a late claim.
It is well settled that “[t]he Court of Claims is vested with broad
discretion to grant or deny an application for permission to file a late
claim” (Matter of Brown v State of New York, 6 AD3d 756, 757 [3d
Dept 2004]). In determining whether relief to file a late claim should be
granted the Court must take into consideration the factors set forth in Court of
Claims Act § 10(6) (Bay Terrace Cooperative Section IV, Inc. v New York
State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys.,
55 NY2d 979 ). The factors are not necessarily exhaustive, nor is the
presence or absence of any particular one controlling (id.). Those
factors are whether the delay in filing the claim was excusable; whether the
defendant had notice of the essential facts constituting the claim; whether the
defendant had an opportunity to investigate; whether the defendant was
substantially prejudiced; whether the claim appears to be meritorious and
whether the claimant has any other available remedy. A proposed claim to be
filed, containing all of the information set forth in CCA § 11, shall
accompany any late claim application.
Claimant is requesting that his amended claim, attached to motion M-74050,
serve as his proposed claim. The amended claim differs ostensibly from the
notice of intention and the filed claim by providing further details of the
events leading up to the oral surgery, a greater amount claimed for damages and
various citations to legal cases as well as state constitution sections.
Noticeably missing from the amended claim is an exact date stating when the oral
surgery was performed in September 2005.
Claimant does not offer any legally acceptable excuse for the delay in the
filing of his claim. It is well established that neither ignorance of the law
nor incarceration is an acceptable excuse for the delay in filing a claim
(Matter of Robinson v State of New York, 35 AD3d 948 [3d Dept 2006]).
Claimant also argues that he was under a legal disability from May through
August 2005, April through June 2006 and December 2006 through January 2007. He
stated that during those periods he was confined in a state hospital. However,
claimant was only intermittently confined in a hospital during the period after
his claim accrued. Most significantly claimant was not confined in a hospital
during the ninety days after his September 2005 operation. Additionally,
claimant served a notice of intention and filed a claim in this matter. The
fatal defect regarding the claim concerned the manner of service of the claim.
Claimant has clearly shown that he has been able to safeguard his rights
(Bowles v State of New York, 208 AD2d 440 [1st Dept 1994]). Thus, the
Court finds that claimant’s excuse for the delay in filing his claim is
The next three factors, notice, an opportunity to investigate and prejudice are
interrelated and as such will be considered together. The Court finds these
factors in claimant’s favor. It also appears as though claimant may have
other remedies available to him.
The most significant issue to be considered is that of merit. To permit the
filing of a legally deficient claim would be an exercise in futility (Savino
v State of New York, 199 AD2d 254 [2d Dept 1993]).
In order for a claim to “appear to be meritorious”: (1) it must not
be patently groundless, frivolous, or legally defective, and (2) the court must
find, upon a consideration of the entire record, including the proposed claim
and any affidavits or exhibits, that there is reasonable cause to believe that a
valid cause of action exists. ...[T]he court need only determine whether to
allow the filing of the claim, leaving the actual merits of the case to be
decided in due course. While this standard clearly places a heavier burden on a
claimant who has filed late than upon one whose claim is timely, it does not,
and should not, require him to definitively establish the merits of his claim,
or overcome all legal objections thereto, before the court will permit him to
file (Matter of Santana v New York State Thruway Authority, 92
Misc 2d 1, 11-12 [Ct Cl 1977]).
Conduct is deemed malpractice rather than negligence “when it
‘constitutes medical treatment or bears a substantial relationship to the
rendition of medical treatment by a licensed physician’” (Scott v
Uljanov, 74 NY2d 673, 675  quoting Bleiler v Bodnar, 65 NY2d
65, 72 ). Although claimant states that his claims are for negligence, as
well as malpractice, claimant’s allegations essentially relate to the
medical care and treatment he received for his dental complaints. This Court
finds that these allegations fall squarely within the realm of claims sounding
in medical malpractice (Bennett v State of New York, 31 AD3d 1069 [3d
Dept 2006]). Claimant has failed to provide the Court with any medical records
substantiating his allegations. Additionally, claimant has not provided the
Court with a qualified expert opinion as to the relevant standard of care,
whether defendant had deviated from that standard and whether that deviation was
the proximate cause of claimant’s injuries. Consequently,
claimant’s failure to submit an expert affidavit in support of his
allegations constrains this Court from determining that his claim is meritorious
(Myers v State of New York, 46 AD3d 1030 [3d Dept 2007]; Wood v State
of New York, 45 AD3d 1198 [3d Dept 2007]).
To the extent claimant is also attempting to raise State Constitutional claims
they are not meritorious since the Court should not imply a State Constitutional
remedy when an adequate alternative remedy is available to claimant (Waxter v
State of New York, 33 AD3d 1180 ; Martinez v City of
Schenectady, 97 NY2d 78 ; Remley v State of New York, 174 Misc
2d 523 [Ct Cl 1997]).
Based upon the foregoing and having considered the statutory factors enumerated
in Court of Claims Act §10(6), the Court finds that claimant’s motion
to file a late claim is denied.
Therefore, for the foregoing reasons, defendant’s cross-motion,
CM-74211, to dismiss the claim numbered 112015 is granted. Additionally,
claimant’s motions M-74050, CM-74250 and CM-74462 are denied.