New York State Court of Claims

New York State Court of Claims
BONES v. STATE OF NEW YORK, # 2009-037-006, Claim No. NONE, Motion No. M-75819

Synopsis

Movant's motion to late file a medical negligence or medical malpractice claim is denied.

Case information

UID: 2009-037-006
Claimant(s): WILLIAM C. BONES, 01-B-0008
Claimant short name: BONES
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) : The caption has been amended sua sponte to reflect the State of New York as the only proper Defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): NONE
Motion number(s): M-75819
Cross-motion number(s):
Judge: JEREMIAH J. MORIARTY III
Claimant's attorney: William C. Bones, Pro Se
Defendant's attorney: Hon. Andrew M. Cuomo
New York State Attorney General
By: Wendy E. Morcio
Assistant Attorney General
Third-party defendant's attorney:
Signature date: March 31, 2009
City: Buffalo
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

The following were read and considered with respect to Movant's motion to late file a claim:

1. "Notice of Intention"(2) motion and supporting affidavit of pro se Movant William C.

Bones sworn to May 13, 2008, with annexed Exhibits;

2. Opposing affidavit of Assistant Attorney General Wendy E. Morcio sworn to

December 8, 2008;

3. Supplemental affidavit of Assistant Attorney General Wendy E. Morcio sworn to

February 20, 2009, with annexed Exhibits A-C;

4. Reply affidavit of pro se Movant William C. Bones sworn to March 3, 2009,with

annexed Exhibits.

Pro se inmate William C. Bones brings this motion for permission to late file a claim pursuant to 10 (6) of the Court of Claims Act. According to the proposed claim,(3) Dr. K. Jin intentionally reduced the amount of Tylenol with Codeine No. 3 Movant had been taking for pain due to his Hepatitis C and sickle cell trait, ordered the reduced dosage to be given crushed, and took Movant completely off the drug sometime during the period of September to November of 2007 while Movant was incarcerated at Collins Correctional Facility (Collins). As a result, Movant alleges that he had to be taken to Erie County Medical Center (ECMC) for treatment of high blood pressure, chest pain, throwing up, runny nose, dizziness, shortness of breath, and loss of feeling in left hand.

Pursuant to 10 (3) of the Court of Claims Act, a claim against the State of New York to recover damages for personal injuries must be filed and a copy served upon the Attorney General within 90 days of accrual unless the claimant serves upon the Attorney General within the same 90-day period a notice of intention to file a claim, in which event the claim must be filed and served within two years of accrual of the claim. In their initial filings, both Movant and the Assistant Attorney General reference a notice of intention to file a claim. In addition, the Court recently became aware of claim no. 116164 (4) filed by Movant on December 5, 2008 which appears to address many, if not all, of the allegations which Movant seeks by his present motion to include in a late claim. The Court adjourned the motion to give both parties the opportunity to submit further papers regarding the alleged notice of intention to file a claim and claim no. 116164 as both could have an impact on the need for a late claim application.

Procedural History

From a review of the file, it appears that Movant attempted to file(5) and served by regular mail a notice of intention to file a claim on the Attorney General on November 9, 2007. According to this notice (see Exhibit A to the Supplemental Affidavit of Assistant Attorney General Morcio), the Movant was denied "coolies 3" pain medication on an unspecified date in September of 2007 while Movant was incarcerated in the Special Housing Unit (SHU) at Collins. On February 27, 2008, Movant served on the Attorney General by regular mail a handwritten claim (claim one) dated November 9, 2007 (see Exhibit B to the Supplemental Affidavit of Assistant Attorney General Morcio). The Clerk's office has no indication that claim one as served on the Attorney General was ever filed with the Clerk of the Court of Claims in Albany. On April 8, 2008, Defendant filed an answer to this claim (see Exhibit C to the Supplemental Affidavit of Assistant Attorney General Morcio). On May 12, 2008, Movant served on Assistant Attorney General Morcio by certified mail, return receipt requested, a document or documents identified on the copy of the green receipt card attached to Movant's supplemental submissions as "Exhibit A-12." (6) On July 14, 2008, Movant attempted to file a different handwritten claim (claim two). This claim was rejected by the Clerk's office because it was not accompanied by the statutory filing fee or by a CPLR 1101 (f) application for a fee reduction (handwritten claim two with the original Court of Claims stamp indicating that the claim had been returned to Movant is annexed to Movant's original motion papers and has been accepted by the Court as the requisite proposed claim). On October 21, 2008, Movant filed his present motion to late file a claim. Two days later, on October 23, 2008, Movant attempted to file a CPLR 1101 (f) application for a fee reduction. Because this application was not accompanied by a copy of claim one as served in February of 2008 or by claim two rejected by the Clerk's office in July of 2008 or by any other claim, the application was rejected by the Clerk's office in Albany. Finally, a different handwritten claim three accompanied by a CPLR 1101 (f) application for the reduction of the filing fee was filed by the Clerk's office as claim number 116164 on December 5, 2008. This third claim was handwritten on a claim form provided to assist pro se litigants and is not an exact copy of either claim one served on the Defendant in February of 2008 or of claim two rejected for filing by the Clerk's office in July of 2008. Finally, in response to the Court's request for information regarding the notice of intention and claim number 116164, Movant filed a packet of additional documents. Among these documents was handwritten claim four which is not an exact duplicate of claims one, two or three. Claim four is dated March 6, 2009, notarized on March 3, 2009 and verified on February 19, 2009. It does not appear that claim four was ever filed or served.

The initial question to be addressed is whether the notice of intention to file a claim that was served on the Attorney General on November 9, 2007 extends for two years from the date of accrual the time in which to file and serve a claim pursuant to 10 (3) of the Court of Claims Act. Unfortunately, the notice of intention does not specify the date upon which the alleged deprivation of medicine occurred. Rather, it simply states that the claim arose on "Sept. ___ 2007." But assuming that the alleged deprivation of medicine occurred as early as September 1, 2007, the notice of intention would have been served within the requisite 90-day period after accrual. Thus, if this notice contained sufficient information to satisfy the requirements of 11 (b) of the Court of Claims Act and was properly served, then Movant would have two years to file and serve a claim, or until September 1, 2009, obviating the need to move for permission to late file a claim.

Pursuant to 11 (a) of the Court of Claims Act, a notice of intention to file a claim, like a claim, must be served upon the Attorney General personally or by certified mail, return receipt requested. The filing and service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]). The affidavit of service attached to the notice of intention indicates that the notice was addressed to the Attorney General and deposited "in an inmate mailbox maintained by the Collins Correctional Facility." The envelope in which the notice was served bears none of the indicia of mailing by certified mail, return receipt requested. Because Movant failed to serve the notice of intention by an authorized method of service, he is not entitled to the two-year extension of time to file and serve a claim permitted by 10 (3) of the Court of Claims Act.

Movant argues that Defendant should be estopped from arguing that the notice of intention was improperly served as it waited thirty-some days before rejecting the notice, thus preventing Movant from having sufficient time to correct the manner of service before the expiration of the 90-day time period for service of a notice of intention. The Assistant Attorney General admits there is some confusion as to whether the notice of intention was rejected or not, but argues that the fact remains that the notice was improperly served by regular mail. The Court agrees. Pursuant to 11 (c) of the Court of Claims Act, an objection based on the failure to comply with the service requirements of the Court of Claims Act is waived if not raised by a motion to dismiss made before service of a responsive pleading is required or in the responsive pleading. Defendant chose to raise the manner of service of the notice of intention as an affirmative defense in the answer it filed in response to claim one served on the Attorney General in February of 2008 (see Exhibit C to the Supplemental Affidavit of Assistant Attorney General Morcio). Because Movant failed to properly serve a notice of intention, he is not entitled to the two-year extension permitted by 10 (3) of the Court of Claims Act. Accordingly, it was incumbent upon Movant to file and serve a copy of his claim on the Attorney General within 90 days of accrual of the claim. The latest date mentioned in the claim served on the Attorney General is November 24, 2007. Assuming the claim accrued as late as that date, then claim one as served on the Attorney General on February 27, 2008 was untimely as it was served more than 90 days after the latest date on which the claim accrued.(7) Moreover, the only claim filed, claim no. 116164, was filed on December 5, 2008, more than 90 days after the claim accrued.(8) Because neither the only claim filed (claim no. 116164) nor the only claim served (claim one) were filed or served within 90 days of accrual of the claim, Movant must move for permission to late file a claim.

Motion to Late File a Claim

Pursuant to 10 (6) of the Court of Claims Act, a motion for permission to late file and serve a claim must be brought within the period of time when "a like claim against a citizen of the state" would not be precluded by the applicable CPLR Article 2 statute of limitations. Under CPLR 214 and CPLR 214-a, a negligence claim must be commenced within three years of accrual of the claim and a medical malpractice claim must be commenced within two and a half years. Because Movant's motion was brought within two and a half years of November 24, 2007, when the last act complained of occurred, the motion is timely whether the proposed claim is construed as a negligence or medical malpractice claim.

Court of Claims Act 10 (6) grants the Court discretion to permit the late filing of a claim upon consideration of many factors including: 1) whether the delay in filing and serving 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 to be meritorious; 5) whether substantial prejudice to the State resulted from the failure to timely serve a claim upon the Attorney General; and 6) whether any other remedy is available. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court is afforded considerable discretion in determining whether to permit the late filing of a claim (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]; Ledet v State of New York, 207 AD2d 965 [1994]).

The first factor to be considered by the Court is whether the delay in filing and serving a claim was excusable. Movant states in general terms that he is unfamiliar with the procedures in the Court of Claims. Because ignorance of the law is not a reasonable excuse for the failure to timely file a claim (Matter of Sandlin v State of New York, 294 AD2d 723 [2002], lv dismissed 99 NY2d 589 [2003]), this factor weighs against Movant's application. The lack of an excusable delay is, however, only one of the factors to be considered by the Court.

The three factors of notice, opportunity to investigate and prejudice are intertwined and may be considered together (Brewer v State of New York, 176 Misc 2d 337 [1998]). Movant argues that Defendant had the opportunity through the grievance process to investigate the claim and that Defendant will not be prejudiced if he is permitted to late file his claim. The Court agrees. Defendant is in possession of Movant's medical records and Movant did file a timely grievance regarding his medication in October of 2007 and served, albeit improperly, a notice of intention to file a claim within 90 days of accrual of the claim. Accordingly, these factors weigh in favor of Movant's application.

The next and often considered the most decisive factor is merit as it would be futile to allow a meritless claim to proceed (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [1977]). Movant must demonstrate that the proposed claim is not "patently groundless, frivolous, or legally defective" and that there is reasonable cause to believe that a valid cause of action exists (id. at 11).

First, it must be noted that Movant may not bring a direct action against Dr. K. Jin in this Court. The Court of Claims is a Court of limited jurisdiction. Its jurisdiction does not extend to claims against individuals, like Dr. K. Jin, even when the individual is an employee of the State of New York (see Court of Claims Act 8, 9; Smith v State of New York, 72 AD2d 937 [1979]). Accordingly, an action against Dr. K. Jin may not be maintained in this Court and the caption has been amended to reflect that the State of New York is the only potential Defendant.

In order to bolster his argument that he has a meritorious claim against the State of New York, Movant has attached to his motion papers copies of a portion of his medical records from the Department of Correctional Services (DOCS) and copies of medical records from several emergency room and hospital visits. From the medical records presented, it appears that Movant has a history of a positive Purified Protein Derivative (PPD) skin test for Tuberculosis, Hepatitis C, hypertension and sickle cell trait for which he was taking medications. From the DOCS records it appears that Movant's medications had been ordered crushed not only in October of 2007 but on other prior occasions by different physicians. Movant was treated at the Wyoming County Community Hospital in June of 2004, June of 2006 and again in July of 2006, the latter for chest pain. In August of 2007, a DOCS Patient Referral Form indicates a history of "poorly manageable HTN, on multiple meds, recent CVA [with] residual symptoms." Finally, on October 10, 2007, Movant was admitted to the Erie County Medical Center (ECMC) with a chief complaint of chest pain. Nothing in the records of ECMC indicates that Movant's October of 2007 hospitalization was in any way related to the alleged change in the amount of his Tylenol with Codeine in September and/or October of 2007 or to its being given crushed. Where, as here, the proposed claim is based on allegations of improper medical care and a deviation from accepted standards of medical care is not apparent from the medical records presented, an expert medical affidavit attesting to a deviation from accepted standards and establishing that the deviation was a proximate cause of the injuries alleged must be submitted (Matter of Perez v State of New York, 293 AD2d 918 [2002]). Movant's failure to provide an expert's affidavit prevents the Court from determining whether the proposed claim is meritorious (Myers v State of New York, 46 AD3d 1030 [2007]; Wood v State of New York, 45 AD3d 1198 [2007]). Thus, this factor weighs against Movant's application.

Finally, Movant agrees that he has other remedies. In fact, Movant could have commenced an action against Dr. K. Jin and/or against ECMC, albeit not in this Court. This factor weighs against Movant's application.

After considering and weighing all of the statutory factors enumerated in 10 (6) of the Court of Claims Act, it is hereby

ORDERED, that Movant's motion no. M-75819 for permission to late file a claim is denied.

March 31, 2009

Buffalo, New York

JEREMIAH J. MORIARTY III

Judge of the Court of Claims


2. Movant has filed a notice of intention instead of the requisite notice of motion. Because Movant is an inmate appearing pro se, the Court has read and considered Movant's papers.

3. Attached to Movant's motion papers is a document entitled "Negligence Tort Claims." For purposes of this motion the Court has accepted this document as the proposed claim which must accompany a motion to late file pursuant to 10 (6) of the Court of Claims Act.

4. On the upper right corner of the claim is handwritten the number "75819" presumably by the Movant. This is not a claim number. Rather, it is the number given to the pending motion (M-75819). To add to the confusion, the claim was originally mis-stamped by the Clerk's office as claim number "116163." This claim number belongs to a different claimant and a different claim. On the top of the claim is handwritten the number "116164" which is the correct number of the claim Movant filed in December of 2008.

5. The notice of intention to file a claim that was forwarded to the office of the Clerk of the Court of Claims was returned to Movant because as of August 2, 1995, it is no longer necessary to file a notice of intention with the Clerk of the Court in Albany.

6. Attached to Movant's supplemental submissions is a copy of a document marked "Exhibit A-12." This is a copy of Movant's "Disbursement or Refund Request" form indicating the authorization of funds from Movant's inmate account to forward something to the Assistant Attorney General by certified mail, return receipt requested, and a copy of the green receipt card. According to Movant, this package contained a copy of a claim, a number of "legal documents," an affidavit for permission to file a late claim, and various medical records. A similar package was received by the Court of Claims in Albany in October of 2008 and filed collectively as motion no. M-75819 for permission to late file a claim.

7. Claim #1 was also improperly served by regular mail. The envelope in which the claim was served bears none of the indicia of mailing by certified mail, return receipt requested.

8. Claim no. 116164 is subject to dismissal as it was filed more than 90 days after the claim accrued. No such motion, however, is presently before the Court.