New York State Court of Claims

New York State Court of Claims

WHITE v. THE STATE OF NEW YORK, #2009-030-517, Claim No. None, Motion No. M-76131


Late claim motion denied. Pro se inmate alleges that it was a violation of Eighth Amendment to US Constitution to not allow him to attend a medical call-out. No excuse, no notice, opportunity to investigate, and State would be prejudiced. Alternate federal court remedy. No appearance of merit. No expert affidavit, if medical harm is what is alleged. No subject matter jurisdiction if violation of US Constitution; no State constitutional tort. If negligence, no indication of how State was negligent or what harm was suffered.

Case Information

1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
March 13, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant’s motion for late claim relief:

1,2 Notice of Motion, Motion for Permission to File a Late Claim by Willis White, claimant and attached papers

  1. Affirmation in Opposition for Leave to File Late Claim by Barry Kaufman, Assistant Attorney General[2] Willis White alleges in his proposed claim that on January 8, 2008 Correction Officer Boyle denied claimant a medical call-out “to see a doctor on medications order.” [Affirmation in Opposition, Exhibit B]. He asserts that this is a claim to recover damages for “injury to or loss of personal property,” and seeks money damages in the amount of $10,000.00. [Ibid.]. A bill of particulars further indicates that he “lost pain, suffering from high blood pressure” and that defendant’s actions violated “his eighth amendment.” [Ibid. Exhibit C]. A photocopy of papers apparently filed in federal court were also attached to the moving papers and served on defendant. [Ibid. Exhibit B].
In his Motion for Permission to File a Late Claim, dated December 16, 2008, Mr. White indicates that the delay was excusable because he was keep-locked and now has access to the law library, that he would not be barred by asserting a like claim against a citizen of the State at this juncture, that the State has notice in that, “A delay in receive medications from a doctor order with threaten & denied to see a Doctor,” (sic) and he has no other available remedy.

In order to determine an application for permission to serve and file a late claim, the Court must consider, “among other factors,” the six factors set forth in §10(6) of the Court of Claims Act. The factors stated 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 serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; 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 and the presence or absence of any particular factor is not dispositive.

Additionally, the motion must be timely brought in order to allow that a late claim be filed “. . . 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 . . .” Court of Claims Act § 10(6). Here, if negligence is the cause of action asserted, the applicable statute of limitations is three (3) years, thus the motion is timely premised on a date of accrual of January 8, 2008. Civil Practice Law and Rules §214. A copy of the proposed claim[3], must accompany the motion, allowing the court to ascertain the particulars of the claim, including “the time when and place where such claim arose, the nature of same, [and] the items of damage or injuries claimed to have been sustained . . .” See Court of Claims Act §11(b); 22 NYCRR §206.6.

A claim appears to be “meritorious” within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates that there is reasonable cause to believe that a valid cause of action exists. Matter of Santana v New York State Thruway Auth, 92 Misc 2d 1 (Ct Cl 1977). Claimant need not establish a prima facie case at this point, but rather the appearance of merit. A general allegation of negligence, and a failure to adequately set forth sufficient facts to show the merit of the claim, will not suffice. Olsen v State of New York, 45 AD3d 824 (2d Dept 2007); Anderson v City University of New York, 8 AD3d 413, 414 (2d Dept 2004).

Claimant has not addressed most of the factors required to be discussed in order to afford a movant permission to serve and file a late claim. The statements concerning his keep-lock status and access to the law library do not establish a reasonable excuse for not serving and filing a claim within ninety (90) days of the accrual date he asserts as January 8, 2008.

The closely related factors of notice, opportunity to investigate and prejudice to the State, considered together, also weigh against granting the motion. The State is not assumed to have actual knowledge of events giving rise to a claim merely because an agency of the State - here the New York State Department of Correctional Services - is involved.

Based upon the attachment of what appear to be papers claimant intends to use in federal court, as well as the claimed deprivation of rights guaranteed by the United States Constitution, namely, the “eighth amendment”, claimant appears to have an alternative remedy.

It is well settled that the appearance of merit is viewed as the most important factor to consider in an application to serve and file a late claim, as it would be an act of futility to permit service of a late claim when it is patently defective or is subject to a complete defense. The proposed claim herein does not have the appearance of merit for late claim purposes.

If the claim is based upon (as it appears to be) Mr. White’s contention that the correction officer’s purported failure to allow Mr. White to attend a medical call-out is a violation of the Eighth Amendment to the United States Constitution, the court does not have subject matter jurisdiction over claims asserting violation of the federal constitution. See Lyles v State of New York, 2 AD3d 694, 696 (2d Dept 2003), affd 3 NY3d 396 (2004). No basis for application of a State constitutional tort remedy is made out here. See generally Brown v State of New York, 89 NY2d 172 (1996).

On the face of the claim, even if all allegations are accepted as true, there is no indication of how the State was negligent, or what harm claimant suffered. If what occurred was a failure to allow claimant’s attendance at a medical call-out, such a matter is addressed administratively and involves matters of discretion in the maintenance of the security of a correctional facility housing dangerous individuals for which immunity attaches. See Arteaga v State of New York, 72 NY2d 212 (1988).

Additionally, when the proposed claim asserts a cause of action requiring an expert opinion in order to be established, an affidavit of merit from a qualified expert should be included with the application. Matter of Perez v State of New York, 293 AD2d 918 (3d Dept 2002).[4] Thus if what claimant is alleging is that a failure to attend a medical call-out caused him medical harm, more than his mere assertions (which are not clear in any event) are required. “Whether the claim is grounded in negligence or medical malpractice, ‘[w]here medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is a required element of a prima facie case’ (Wells v State of New York, 228 AD2d 581, 582 [1996], lv denied 88 NY2d 814 [1996]; see Duffen v State of New York, 245 AD2d 653, 653-654 [1997], lv denied 91 NY2d 810 [1998]).” Tatta v State of New York, 19 AD3d 817, 818 (3d Dept 2005), lv denied 5 NY3d 712 (2005).

“[W]hen the excuse offered for the delay is inadequate and the proposed claim is of questionable merit . . . (citations omitted)” the Court appropriately exercises its discretion to deny an application for late claim relief. Matter of Perez v State of New York, supra, at 919; see also Matter of Gonzalez v State of New York, 299 AD2d 675 (3d Dept 2002).

Accordingly, and after careful balancing and consideration of all the factors, the claimant’s motion for permission to serve and file a late claim [M-76131] is hereby in all respects denied.

March 13, 2009
White Plains, New York

Judge of the Court of Claims

[2]. An additional Affidavit by Michael C. Rizzo, Assistant Attorney General sworn to on January 29, 2009, appears to be responding to another motion for late claim relief perhaps, but since there are no pertinent papers attached to the copy of claimant’s motion Mr. Rizzo was responding to, it is difficult to tell. Indeed, Mr. Rizzo’s response is just that: that he cannot tell what relief claimant is looking for. This affidavit was filed with this motion in any event.
[3]. Court of Claims Act § 10(6) states in pertinent part: “. . . The claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application . . .”
[4]. In proposed claim alleging that the misdiagnosis and inadequate treatment of a cancerous ulceration on his leg resulted in deformity and permanent injury, medical records alone insufficient in support of late claim motion. Expert medical evidence was required to show that the alleged inadequate treatment of ulcer was inadequate in the first instance, and that the ulcer was cancerous when examined, and how such failures are linked to the damages suffered.