New York State Court of Claims

New York State Court of Claims
TYLER v. THE STATE OF NEW YORK, # 2009-030-572, Claim No. NONE, Motion No. M-77371


Late claim relief denied. No proposed claim. No medical expert, no medical records, no pharmaceutical literature to show the appearance of merit of claim asserting that mixture of prescribed psychotropic medications caused inmate claimant harm.

Case information

UID: 2009-030-572
Claimant(s): DAVID A. TYLER
Claimant short name: TYLER
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): NONE
Motion number(s): M-77371
Cross-motion number(s):
Claimant's attorney: DAVID A. TYLER, PRO SE
Third-party defendant's attorney:
Signature date: December 18, 2009
City: 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, Affidavit in Support of Motion for Permission to File a Late Claim by David A. Tyler, claimant

3 Affirmation in Opposition for Leave to File Late Claim by Barry Kaufman, Assistant Attorney General

David A. Tyler alleges that medical personnel either at an unnamed correctional facility operated by the New York State Department of Correctional Services [DOCS], or at contracted outside medical facilities, failed to provide him with adequate medical and mental health care while he was in DOCS custody. [Affidavit in Support of Motion for Permission to File a Late Claim, 2-3]. More specifically, he indicates that he was treated with psychotropic medications, namely, Zyprexa, Wellbutrin and Remeron, as well as a regimen of medication prescribed for the treatment of hepatitis C, and that such medications in combination caused harm to his liver. [Ibid. 3]. No separate, proposed claim is attached, nor has Mr. Tyler appended an affidavit of merit from a physician or psychiatrist.

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. See e.g. Matter of Gavigan v State of New York, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any particular factor is not dispositive Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New York, 288 AD2d 172 (2d Dept 2001).

A copy of the proposed claim(2) , should accompany the motion, allowing the Court to ascertain the nature of the claim, including the date of accrual, where it arose, and what injuries are alleged. See Court of Claims Act 11-b.

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, the applicable statute of limitations - assuming a medical malpractice claim - is two and one-half (2 ) years. Civil Practice Law and Rules 214-a. It is unclear when the claim accrued. Mr. Tyler asserts that he was receiving Zyprexa and Wellbutrin in July 2007 as a matter of course, and was later prescribed medication for hepatitis C in August 2008. He asserts that he should not have been given Remeron based upon medical indicia that as an individual with chronic hepatitis, who was also taking the psychotropic medications indicated, and that he suffered further injury to his liver as a result. He alleges he stopped taking the Remeron on July 24, 2009. A motion is "made when a notice of the motion . . . is served." Civil Practice Law and Rules 2211; see Rivera v Glen Oaks Village Owners, Inc., 29 AD3d 560, 561 (2d Dept 2006) lv denied 9 NY3d 817 (2008); see also Jenkins v State of New York, 119 Misc 2d 144, 145 (Ct Cl 1983). The Court will assume the motion is timely despite the lack of specificity, since the motion was made on October 7, 2009, which appears to be within the statutory period.

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.

Claimant has not attached a copy of his proposed claim, and the motion is therefore denied on that ground alone. More substantively, the claimant has not established entitlement to late claim relief based upon a review of the required statutory factors.

Claimant has not really advanced any arguments concerning the statutory factors for late claim relief, except to say that he did not realize that the medications he was taking were harmful to him. This does not constitute a reasonable excuse for not timely serving and filing a claim. Matter of P.A. v State of New York, 277 AD2d 671 (3d Dept 2000).

The absence of an excuse, however, is but one of the factors to be considered, and does not necessarily preclude relief. Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, supra.

The closely related factors of notice, opportunity to investigate and prejudice to the State, considered together, have not been addressed by claimant. It has been more than two (2) years since claimant began taking the medication he alleges caused his injury, thus the State's ability to investigate is impeded to its prejudice by the passage of time alone.

The appearance of merit is viewed as the most important factor to consider in an application to serve and file a late claim. 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)(3) ; Schreck v State of New York, 81 AD2d 882 (2d Dept 1981)(4) ; Favicchio v State of New York, 144 Misc 2d 212, 214 (Ct Cl 1989)(5) ; Jolley v State of New York, 106 Misc 2d 550, 551-552 (Ct Cl 1980)(6) ; But, cf. DePaolo v State of New York, 99 AD2d 762 (2d Dept 1984).(7)

In a medical malpractice claim, the claimant has the burden of proof and must prove (1) a deviation or departure from accepted practice and (2) evidence that such deviation was the proximate cause of the injury or other damage. A cause of action is premised in medical malpractice when it is the medical treatment - including determinations to prescribe medication - that is in issue. A claimant must establish that the medical caregiver either did not possess or did not use reasonable care or best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field. Without such medical proof, no viable claim giving rise to liability on the part of the State can be sustained. Hale v State of New York, 53 AD2d 1025 (4th Dept 1976), lv denied 40 NY2d 804 (1976). A medical expert's testimony is necessary to establish, at a minimum, the standard of care. Spensieri v Lasky, 94 NY2d 231 (1999).

In this case, only the unsupported assertions of the claimant have been submitted in support of any claim of malpractice. No competent affidavit, by a treating physician or an expert witness whose opinion was based upon the available medical records, has been submitted to support the allegation of medical malpractice. If the theory is that changing his medication caused claimant injury, this is not something that can be understood by a layperson. There is no medical evidence on any medical issue and thus claimant has not established the appearance of merit of his claim.

"[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 having carefully considered the relevant statutory factors, the Court finds that the balance of factors weigh against claimant, and his motion for permission to serve and file a late claim is in all respects DENIED.

December 18, 2009

White Plains, New York


Judge of the Court of Claims

2. 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 . . . "

3. 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.

4. Court of Claims abused discretion in allowing late claim to be filed in claim alleging medical malpractice where no affidavit by medical expert causally linking birth of brain damaged child to asserted malpractice submitted.

5. Opinion by medical expert without underlying basis for it - in this case the medical records the physician indicated he had reviewed - insufficient to establish appearance of merit in late claim motion.

6. An attorney's affirmation by one experienced in medical malpractice litigation is not competent to establish the appearance of merit in application to file late claim alleging medical malpractice. Court did not rely on any other late claim factors in making determination to deny motion.

7. Denial of inmate's motion to file late claim abuse of discretion where medical records furnished established that he suffered from the medical conditions that the Motrin packaging literature advised precluded prescription of the drug, in a claim alleging medical malpractice based upon physician's allegedly improper direction that inmate take Motrin. No medical affidavit needed to be furnished under these circumstances.