Late claim motion was denied.
|Claimant short name:||TAYLOR|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Alan C. Marin|
|Claimant's attorney:||James Taylor, Pro Se|
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: Roberto Barbosa, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||July 20, 2009|
|See also (multicaptioned case)|
Claimant James Taylor seeks permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). In his proposed claim, Mr. Taylor alleges that he was provided with inadequate medical treatment while incarcerated at Sullivan Correctional Facility. Specifically, he alleges as follows: On October 20, 2008, he injured his left ankle while working on the facility's farm. After "being examined by the nursing staff in a cursory fashion" on October 21st and 23rd, he was given an ankle brace and pain medication, and was told that the injury was not serious. Thereafter, his pain worsened, making it difficult to walk. On October 27, 2008 and "several visits thereafter," he requested a Cat Scan or MRI, but his request was denied. He then filed a grievance re same, which was also denied.(1) Taylor states that to date, his medical condition has worsened and that he has failed to undergo "more thorough testing." See the proposed claim annexed to claimant's moving papers.
In order to determine this motion, six factors enumerated in the Act must be considered, i.e., 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.(2)
With regard to the first three factors, defendant "concedes [that] it received notice of the essential facts . . . [that] it had an opportunity to investigate . . . and that defendant has not been substantially prejudiced." See ¶¶14 and 15 of the June 1, 2009 affirmation of Roberto Barbosa. In addition, with regard to the fourth factor, defendant agrees that claimant has no other available remedy. With regard to the fifth factor, Taylor argues that his untimeliness should be excused because he did not exhaust his administrative remedies until January 14, 2009, that a date of accrual cannot be determined because of the alleged failure to treat him, and because his injury is "continual and ongoing." He has supplied no authority to suggest that these are valid excuses for the purposes of the Act.
The final factor to be considered is 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 (2d Dept 1981); Favicchio v State of New York, 144 Misc 2d 212 (Ct Cl 1989); and Jolley v State of New York, 106 Misc 2d 550 (Ct Cl 1980). A number of appellate 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 Matter of Caracci v State of New York, 178 AD2d 876 (3d Dept 1991); Matter of O'Shea v State of New York, affd 278 AD2d 237 (2d Dept 2000); and DePaolo v State of New York, 99 AD2d 762 (2d Dept 1984). Here, claimant has submitted no medical records, other than a copy of a November 3, 2008 memorandum to him from Sullivan Correctional Facility Nurse Administrator S. J. Lilley, which states:
I am in receipt of your recent correspondence regarding your request for medical care. You have been evaluated by more than one health care provider, and additionally observed to not be in any distress or discomfort re your complaint. The physician feels that an xray and a medical restriction is unwarranted at this time.
See the second undesignated exhibit annexed to claimant's reply papers.
In view of the foregoing, I find that claimant fails to demonstrate merit. See Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11 (Ct Cl 1977).
Accordingly, having reviewed the submissions(3) , IT IS ORDERED that motion no. M-76673 be denied.
July 20, 2009
New York, New York
Alan C. Marin
Judge of the Court of Claims
1. Claimant's reply papers indicate that grievances were filed on November 3 and 5, 2008.
2. 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).
3. The following were reviewed: claimant's notice of motion with "Motion for Permission to File a Late Claim" and proposed claim; defendant's affirmation in opposition; and claimant's "Response to Defendant's Affirmation in Opposition" with annexed undesignated exhibits.