Late claim motion was denied.
|Claimant short name:||MIMS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Alan C. Marin|
|Claimant's attorney:||John Mims, Pro Se|
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: Gwendolyn Hatcher, AAG
|Third-party defendant's attorney:|
|Signature date:||August 12, 2009|
|See also (multicaptioned case)|
John Mims moves for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). Mr. Mims, who uses a wheelchair, states in his proposed claim that on January 25, 2009, while he was an inmate at Arthur Kill Correctional Facility, he sat in a chair while taking a shower at the facility, and the chair's legs gave way, causing him to fall and injure his back, neck and shoulder. He further alleges that after the incident, Arthur Kill medical staff failed to provide him with adequate medical treatment.
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.(1)
The first three factors - whether defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this motion are intertwined and may be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342 (Ct Cl 1998). Claimant does not state whether a State employee witnessed his fall. Moreover, aside from his proposed claim and some scant statements in his motion papers, Mims has submitted no documentary evidence concerning his fall. Since he complains of a lack of adequate medical treatment thereafter, he presumably sought medical treatment from defendant, although no detail is provided. No medical records have been submitted and in fact, it is unclear from the proposed claim whether Mims is alleging that he received no treatment at all, or that he views the treatment he received as inadequate.(2) In view of the foregoing, I cannot find that Mims satisfies these three factors.
Claimant's sole remedy presumably lies against the State in this Court. With regard to excuse, claimant alleges that he "has a legal disability in which he suffers from Dementia and simply lacks the capacity to adequately formulate such claim." See ¶3 of claimant's "Motion for Permission to File Late Claim." Claimant has submitted no evidence to demonstrate that he in fact suffers from dementia and he has thus failed to state an excuse sufficient for the purposes of the Act. See, e.g., Goldstein v State of New York, 75 AD2d 613 (2d Dept 1980). It should be noted that if claimant is in fact currently under a legal disability, pursuant to §10.5 of the Act, his time to present a claim would be two years after such disability is removed, rendering the instant late claim motion unnecessary.
Finally, with regard to whether the claim appears meritorious, as set forth above, claimant has submitted no documentary evidence relating to his fall, such as an incident report, a log entry or a grievance. As to medical treatment or the lack thereof, claimant has failed to submit an affidavit from a physician as to the merit of his claim. Nor has he submitted any medical records. There is authority that a physician's 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, Ct Cl, November 5, 1999 (unreported, motion no. M-59853, Marin, J.), affd 278 AD2d 237 (2d Dept 2000); and DePaolo v State of New York, 99 AD2d 762 (2d Dept 1984). In view of the foregoing, claimant has failed to demonstrate merit for the purposes of the Act. See Sands v State of New York, 49 AD3d 444 (1st Dept 2008).
Accordingly, having considered the six factors in view of the parties' submissions(3) , IT IS ORDERED that motion no. M-76793 be denied.
August 12, 2009
New York, New York
Alan C. Marin
Judge of the Court of Claims
1. See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 (1982); Scarver v State of New York, 233 AD2d 858 (4th Dept 1996).
2. The proposed claim states in relevant part that, "[t]o date, the [Arthur Kill] medical staff has negligently failed or refused to provide me with adequate medical care and treatment . . ." If claimant is alleging ongoing inadequate medical treatment, the doctrine of continuous treatment might apply, such that Mims could serve and file a claim without the need for a late claim motion.
3. The following were reviewed: claimant's "Motion for Permission to File Late Claim" with proposed claim; and defendant's affirmation in opposition with exhibit A.