New York State Court of Claims

New York State Court of Claims

MURRAY v. THE STATE OF NEW YORK, #2009-009-008, Claim No. 113994, Motion Nos. M-75873, CM-75876


Claimant’s motion seeking permission to serve and file a late claim was granted, as was defendant’s cross-motion to dismiss an existing claim based upon the same facts and allegations.

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:
Attorney General
BY: Michael R. O’Neill, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
March 25, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Due to some possible jurisdictional defects regarding Claim No. 113994, previously served and filed by claimant, claimant has brought a motion (M-75873) seeking permission to serve and file a late claim. Defendant has responded with a cross-motion (CM-75876) seeking an order dismissing existing Claim No. 113994, but not raising any objections to claimant’s late claim motion.

The following papers were considered by the Court in connection with these motions:
Notice of Motion, Affirmation, with Exhibits (M-75873) 1,2

Notice of Cross-Motion, Affirmation (CM-75876) 3,4

As stated above, claimant previously served and filed a claim (Claim No. 113994) alleging medical malpractice and negligent conduct based upon medical treatment provided to him when he was incarcerated at Auburn Correctional Facility. This claim was filed with the Clerk of the Court of Claims on July 25, 2007 and served upon the defendant on July 27, 2007. Defendant served its Verified Answer to this claim on or about September 5, 2007. In this Answer, defendant raised an affirmative defense (see Answer, Eighth Affirmative Defense) that claimant’s notice of intention was not timely served, thereby rendering service of the claim untimely as well.

According to the Affirmation of claimant’s attorney (Item 2), claimant, at the time proceeding pro se, served a Notice of Intention to Serve and File a Claim upon the Attorney General on September 1, 2006, by certified mail, return receipt requested. Claimant thereafter served an Amended Notice of Intention on September 29, 2006, and a Second Amended Notice of Intention on April 20, 2007 (Exhibits D, E, F to Items 1,2). It is noted that these different notices set forth different dates as to when the cause of action for medical malpractice accrued.

As the parties are well aware, pursuant to Court of Claims Act § 10(3), a claim must be served upon the Attorney General and filed with the Clerk of the Court of Claims within 90 days from the date of accrual of the cause of action, unless within such time period a written notice of intention to file a claim is served upon the Attorney General, in which case the claim must then be served and filed within two years after accrual.

As it appears from the submitted papers, the parties now seem to agree that the cause of action for medical malpractice, including allegations of negligent treatment and failure to properly diagnose, accrued on May 9, 2006, when claimant injured his arm at Auburn Correctional Facility. Assuming this date of accrual is correct, it is therefore apparent that the first notice of intention served by claimant upon the defendant on September 1, 2006 was not served within 90 days of accrual. Obviously, the subsequent Amended Notice of Intention and Second Amended Notice of Intention also could not have been served within 90 days of accrual.

Although it appears that there very well may be issues of continuous treatment involved in this claim that could operate to toll the time period for commencement of a claim, claimant has elected to proceed with the within application for late claim relief, rather than contesting the affirmative defense of untimeliness asserted by defendant. In turn, defendant has not objected to this application for late claim relief, but only seeks dismissal of the possible jurisdictionally claim if late claim relief is in fact granted.

The initial inquiry on any application seeking permission to serve and file a late claim is whether the application has been timely made. Pursuant to the provisions of § 10(6) of the Court of Claims Act, the application must be made “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.”

Pursuant to § 214-a of the CPLR, any action based upon allegations of medical malpractice must be commenced with two years and six months of the act or omission constituting such malpractice. In this particular matter, it is apparent that the application was made within two years and six months of the initial injury to claimant’s right arm which occurred on May 9, 2006, without even taking into consideration any potential tolling of the time period based upon the continuous treatment doctrine[1]. Accordingly, this Court finds and concludes that the application has been timely made.

In order to determine an application for permission to serve and file a late claim, the Court must consider, among other relevant factors, the six factors set forth in § 10(6) of the Court of Claims Act. The factors set forth therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely file and the failure to serve upon the Attorney General a timely claim or notice of intention to file a claim; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim (Matter of Gavigan v State of New York, 176 AD2d 1117).

In his moving papers, claimant’s attorney has implicitly acknowledged that claimant has no legally acceptable excuse for failing to timely serve and file his claim. Similarly, defendant’s attorney acknowledges, in his affirmation in support of the cross-motion, that defendant does not have grounds to object to the late claim application of the claimant. Specifically, by virtue of the various notices of intention and the service and filing of Claim No. 113994, the defendant has had notice of the alleged malpractice within a reasonable time after its occurrence, notwithstanding the jurisdictional issues that have been raised as to timeliness of service. Furthermore, since claimant was incarcerated in State custody at the time of the alleged malpractice, the State has access to medical records documenting claimant’s treatment, as well as access to the State employees involved in claimant’s medical treatment. The Court finds, therefore, that the State will not be prejudiced in any manner should it have to defend this claim.

With regard to merit, claimant has submitted with his motion papers a “Comprehensive Screening Report” (see Exhibit J to Items 1,2) attesting to the merit of this claim. This statement, although not in affidavit form, is sufficient, in the opinion of this Court, to establish a meritorious claim for the limited purposes of this application, as claimant has established reasonable cause to believe that a valid claim exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1).

It does not appear that claimant has any other available remedy.

Based upon the foregoing, it is the opinion of this Court that claimant should be allowed to serve and file his proposed claim[2]. Based upon this determination, and after considering the jurisdictional issues raised by the defendant in its cross-motion as previously discussed herein, it is the further opinion of this Court that defendant’s cross-motion to dismiss should also be granted.

Accordingly, it is

ORDERED, that Motion No. M-75873 is hereby GRANTED; and claimant is directed to serve and file his proposed claim, properly verified, within 45 days from the date of filing of this decision and order in the Clerk’s office, with such service and filing to be in accordance with the Court of Claims Act, with particular reference to Sections 10, 11 and 11-a, and the Uniform Rules for the Court of Claims; and it is further

ORDERED, that Cross-Motion No. CM-75876 is also GRANTED; and it is further

ORDERED, that Claim No. 113994 is hereby DISMISSED.

March 25, 2009
Syracuse, New York

Judge of the Court of Claims

[1]. The statutory reference to Article 2 of the CPLR set forth in § 10(6) has been interpreted to mean that the motion must be made before expiration of the analogous statute of limitations, even though the return date or the date on which the claim is eventually served and filed occurs after expiration of the limitations period (Johnson v State of New York, 131 Misc 2d 630; Jenkins v State of New York, 119 Misc 2d 144).
[2]. The proposed claim submitted with claimant’s motion (Exhibit A to Items 1,2) is identical to existing Claim No. 113994.