New York State Court of Claims

New York State Court of Claims

BONDZIO v. THE STATE OF NEW YORK, #2009-009-029, Claim No. NONE, Motion No. M-76526


Claimant’s motion seeking permission to serve and file a late claim was denied, due primarily to claimant’s failure to set forth expert medical documentation.

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: Sean B. Virkler, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
September 30, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this motion seeking permission to serve and file a late claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit in Support, Proposed Claim 1,2,3

Affirmation in Opposition, with Exhibit 4

“Affirmation” of Claimant (Reply) 5

In his proposed claim, claimant alleges that while incarcerated at Mid-State Correctional Facility (Mid-State), he did not receive adequate care and medical treatment for certain chronic medical conditions from which he was suffering. Claimant alleges that his claim accrued on August 15, 2008, and continued through March 15, 2009, when he was transferred from Mid-State.

Pursuant to § 10(6) of the Court of Claims Act, a late claim application may be brought “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.” Since this proposed claim asserts a cause of action sounding in medical malpractice, and based upon the date of accrual alleged by claimant therein, it appears that the within application is timely pursuant to CPLR § 214-a, which requires that such claims be asserted within two years and six months from accrual.

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).

The presence or absence of any one particular factor is not necessarily dispositive of any application (Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979), and none of the factors can require denial as a matter of law.

With regard to excuse, claimant has stated that he attempted to serve the Attorney General with a Notice of Intention to Serve and File a Claim, but that it was improperly served and was apparently rejected. He further states that he has had medical issues that have prevented him from timely serving and filing his claim.

The failure to properly serve the Attorney General with a notice of intention can be equated to ignorance of the law, which is not recognized as a legally acceptable excuse for failing to timely serve and file a claim (Sevillia v State of New York, 91 AD2d 792).

The medical incapacity of a claimant throughout the statutory period, however, can qualify as a reasonable excuse for the failure to serve and file (Bloom v State of New York, 6 Misc 2d 553, affd 5 AD2d 930). Any such allegation, however, must be supported by a physician’s affidavit or some other proof that the claimant was unable to act in a timely manner (Cabral v State of New York, 149 AD2d 453). In this particular matter, claimant has not submitted a physician’s affidavit, or any other proof, to establish to the satisfaction of the Court that he was unable, for medical reasons, to timely serve and file his claim. Accordingly, the Court finds that claimant has not established any acceptable excuse for his failure to timely serve and file his claim herein.

The factors of notice, opportunity to investigate, and substantial prejudice will be considered together. Claimant did not address any of these factors in the instant application, except the self-serving (and pre-printed) statement that defendant had “full knowledge of facts at all times and can not claim prejudice by this delay.” (See Item 2, Affidavit in Support, par. 5). Such a conclusory statement is insufficient to satisfy this Court that the State either had notice of the essential facts or an opportunity to investigate the circumstances underlying the claim. Notwithstanding this finding, however, since this claim is based upon allegations of medical malpractice and/or negligence occurring while claimant was incarcerated in State custody, defendant has available all of claimant’s medical records during this time, and therefore should not be substantially prejudiced should it have to defend this claim.

The next factor, often deemed the most critical, is whether the proposed claim has the appearance of merit. If claimant cannot establish a meritorious claim, it would be an exercise in futility to grant a late claim application (Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729). In order to establish a meritorious cause of action, claimant has the burden to show 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 (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1).

In medical malpractice claims, a finding of merit usually requires a supporting affidavit from a physician or other medical expert (Favicchio v State of New York, 144 Misc 2d 212), although such an affidavit is not necessary if the appearance of medical malpractice can be determined based upon other submissions (DePaolo v State of New York, 99 AD2d 762).

In this particular matter, movant has provided only his own affidavit, without any supporting medical documentation or expert opinion. Additionally, claimant has not presented any sufficient facts for this Court to make a determination that a valid cause of action exists, other than detailing his chronic medical conditions and alleging that these conditions have essentially been ignored or gone untreated. These statements and allegations are simply not sufficient to establish the appearance of merit (Klingler v State of New York, 213 AD2d 378; Calco v State of New York, 165 AD2d 117, lv denied 78 NY2d 852).

Furthermore, defendant has submitted a copy of claimant’s medical records (Exhibit A to Item 4), which establish that claimant was evaluated by medical staff at Mid-State on numerous occasions during the period complained of, that he had been referred to outside facilities for consultations and/or examinations on other occasions, and that medical staff at Mid-State ordered certain diagnostic tests at other times. Upon its review of these records, it therefore appears to this Court that claimant has based his cause of action not on a failure of the medical staff to address his concerns or complaints, but rather upon his dissatisfaction with the medical treatment provided. Based on this analysis, the Court finds that an expert affidavit is of critical importance in establishing the appearance of merit, and without it claimant has failed to established that his proposed claim is meritorious.

Although not addressed by claimant, it does not appear that he has any other available remedy.

After a review of the papers submitted herein, and after weighing and considering all of the factors set forth under Court of Claims Act §10(6), it is the opinion of this Court that claimant should not be allowed to serve and file his proposed claim.

Therefore, it is

ORDERED, that claimant’s Motion No. M-76526 seeking permission to serve and file a late claim is hereby DENIED.

September 30, 2009
Syracuse, New York

Judge of the Court of Claims