|Claimant short name:||OYAGUE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended to reflect that the sole proper defendant here is the State of New York.|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Ralph Oyague, Pro Se|
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: James E. Shoemaker, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||June 1, 2009|
|See also (multicaptioned case)|
Claimant Ralph Oyague moves for an order striking the defendant's fourth through seventh affirmative defenses and granting "judgement . . . of the relief requested and reasonable compensation . . ." He also seeks permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). Defendant cross-moves to dismiss on the ground that the claim was improperly served by regular mail. In his underlying claim, Mr. Oyague alleges that he was provided with inadequate medical treatment following a May 2005 incident in which he injured his right knee while incarcerated at Sullivan Correctional Facility. Specifically, he alleges that the injury was "eventually diagnosed as a torn meniscus" and that arthroscopic surgery to correct the injury was unreasonably delayed for approximately two years to June 22, 2007.
On June 16, 2008, claimant served a notice of intention on the State by certified mail, return receipt requested. He thereafter filed a claim on December 1, 2008 and served the claim on the State by regular mail on December 3, 2008. Section 11a.(i) of the Act requires that both notices of intention and claims be served by either personal service or service by certified mail, return receipt requested. Regular mail is not an authorized method of service and its use is insufficient to obtain jurisdiction. See e.g. Philippe v State of New York, 248 AD2d 827, 669 NYS2d 759 (3d Dept 1998). Accordingly, the court lacks jurisdiction over claim no. 116144.(2)
As to Oyague's late claim motion, six factors enumerated in the Act must be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.(3)
With regard to notice, defendant has access to claimant's medical records. But if such were sufficient to impute notice for the purpose of the Act, that would mean that in any medical malpractice case, the notice factor would automatically be satisfied. See O'Shea v State of New York, Ct Cl filed November 5, 1999 (unreported, motion no. M-59853, Marin, J.), affd 278 AD2d 237, 717 NYS2d 293 (2d Dept 2000). The medical records do, however, offer an opportunity to investigate at this time, and defendant has pointed to no prejudice.
As to an alternate remedy, it appears that the sole venue for Oyague's claim would be in this court. With regard to excuse, Oyague has offered no excuse for improperly serving his claim by regular mail.
Finally, it must be determined whether the proposed claim appears meritorious. Claimant has failed to submit an affidavit from a physician as to the merit of his claim. There is authority that such an affidavit is a condition precedent to a finding of merit on a late claim motion. See, e.g., Schreck v State of New York, 81 AD2d 882, 439 NYS2d 162 (2d Dept 1981); Favicchio v State of New York, 144 Misc 2d 212, 543 NYS2d 871 (Ct Cl 1989); and Jolley v State of New York, 106 Misc 2d 550, 434 NYS2d 122 (Ct Cl 1980). A number of appellate division cases have held that a medical affidavit is not necessary, but in such cases, claimants submitted medical records patently sufficient to show the appearance of medical malpractice. See Caracci v State of New York, 178 AD2d 876, 577 NYS2d 925 (3d Dept 1991); O'Shea, supra; and DePaolo v State of New York, 99 AD2d 762, 472 NYS2d 10 (2d Dept 1984). In the instant case, the medical records annexed to the claim do not patently demonstrate the appearance of medical malpractice. I find that claimant fails to meet the standard of Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977): (i) the claim "must not be patently groundless, frivolous, or legally defective" and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, "there is reasonable cause to believe that a valid cause of action exists."
Accordingly, having reviewed the submissions(4) , IT IS ORDERED that motion no. M-76223 be denied, that cross-motion no. CM-76405 be granted and that claim no. 116144 be dismissed.
June 1, 2009
New York, New York
Alan C. Marin
Judge of the Court of Claims
2. It also appears that Oyague's claim was untimely such that the court lacks jurisdiction per §10.3 of the Act which requires that either a notice of intention or claim be served within 90 days of accrual. As set forth above, Oyague alleges that he was injured in May 2005 and had surgery on June 22, 2007; he did not serve his notice of intention until June 16, 2008.
3. See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
4. The following were reviewed: claimant's "Affidavit/Motion" re motion no. M-76223 with exhibits A through C; defendant's notice of cross-motion with affirmation in support and exhibits A through E; claimant's letter dated March 22, 2009 with attached photocopies of "Disbursement or Refund Request" dated June 12, 2008 and certified mail return receipt dated June 16, 2008; and defendant's "Supplemental Affirmation" with exhibits A and B; claimant's letter dated April 12, 2009.