New York State Court of Claims

New York State Court of Claims

JOYCE v. THE STATE OF NEW YORK, #2009-040-005, Claim No. NONE, Motion No. M-75649


Synopsis


Motion to late file pursuant to CCA § 10(6) denied.

Case Information

UID:
2009-040-005
Claimant(s):
ANTHONY JOYCE
Claimant short name:
JOYCE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-75649
Cross-motion number(s):

Judge:
CHRISTOPHER J. MCCARTHY
Claimant’s attorney:
Anthony Joyce, Pro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Belinda A. Wagner, Esq., AAG
Third-party defendant’s attorney:

Signature date:
January 16, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

For the reasons set forth below, Movant’s application to serve and file a late claim pursuant to Court of Claims Act § 10(6) is denied.

Movant, for the second time, seeks permission to serve and file a late claim. The proposed claim, attached to the motion papers, alleges that, on July 29, 2007, Movant was in the Bare Hill Correctional Facility in Malone, New York (hereinafter Bare Hill) Annex yard playing ball when he was struck on the hand by a softball, causing injury to his left pinky.[1] The proposed claim further alleges that, on July 30, 2007, Defendant disregarded its duty “by neglecting to administer proper medical care at Bare Hill.”[2] Movant states that following the injury, he went to the Bare Hill medical clinic and was told he needed x-rays; that, during August 2007, x-rays were taken and he was advised that the x-rays were negative for “breaks or chipped bones”; that he returned to the clinic because of extreme pain and swelling; that the staff told him he was alright and told him to apply ice and take aspirin for pain; that a second set of x-rays were taken in August 2007 which revealed “a broken and/or chipped bone of [Movant’s] left pinky”; that, in April 2008, he went for his first physical therapy session after the cast and pins were removed and he was advised he would have to see the doctor again because his “hand [was] not correct.”

The Court previously determined: (1) that the applicable statute of limitations set forth in Article 2 of the CPLR has not expired for either a cause of action for medical malpractice (CPLR § 214-a, a two-year-and-six-month Statute of Limitations) or for medical negligence (CPLR § 214[5], a three-year Statute of Limitations) and, thus, the motion was properly before the Court; (2) that Movant’s proffered excuse for the delay in timely filing and serving the claim – lack of knowledge of the Court’s filing requirements – was not a reasonable excuse (Modern Transfer Co. v State of New York, 37 AD2d 756 [4th Dept 1971]; Fowx v State of New York, 12 Misc 3d 1184[A] [Ct Cl 2006]); (3) that the factors of whether Defendant had notice of the essential facts constituting the claim, whether Defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant weigh in Movant’s favor; and (4) that it appears that Movant does not have any alternate remedy. Regarding the appearance of merit of the proposed claim, the Court determined that:
The proposed claim alleges negligent acts relating to Movant’s medical treatment at Bare Hill. However, Movant has not submitted either his medical records or an expert affidavit stating that Defendant’s actions departed from the accepted standard of care (see Matter of Robinson v State of New York, 35 AD3d 948, supra at 950; Rosario v State of New York, 8 Misc 3d 1007[A], supra). In the absence of Movant’s medical records, the merit of any allegations of medical malpractice in his motion papers are not established. Further, in the absence of an expert affidavit, there is no support for his contention that Defendant committed medical malpractice, or that such alleged malfeasance or nonfeasance caused injury to him (see Schreck v State of New York, 81 AD2d 882 [2d Dept 1981]).

To the extent the proposed claim alleges medical negligence, it does not appear to the Court that the questions raised are within the usual experience and knowledge possessed by laypersons (see Matter of Perez v State of New York, 293 AD2d 918, supra at 919).

The Court concludes, however, that the interests of justice would be best served by permitting Movant to reapply for permission to file a late claim, if he so desires. On such re-application, he must establish that his cause of action for medical malpractice has the appearance of merit by the affidavit of an expert and/or medical records. The application, moreover, must be timely filed in compliance with the underlying two-year-and-six-month Statute of Limitations (CPLR § 214-a).
(Joyce v State of New York, Ct Cl, Claim No. None, Motion No. M-74982, July 14, 2008, McCarthy, J. [UID No. 2008-040-045]).

In an attempt to establish the appearance of merit, Movant has submitted copies of various correctional facility medical records. From a review of the medical records, any alleged malpractice is not patently revealed. Movant had his finger x-rayed twice. X-rays were ordered on the first day he presented himself on July 30, 2007 and they were done on August 3, 2007. No fracture, dislocation or adjacent soft tissue abnormality was found. A second set of x-rays was taken on August 15, 2007 to rule out a fracture or dislocation. Another doctor reviewed these x-rays on August 22, 2007 and diagnosed Movant with a “swan neck deformity” (see Request and Report of Consultation, date of Appointment – August 22, 2007). There is no proof that the care and treatment provided from July 30, 2007 to August 22, 2007 was not in conformance with medical practices. Movant’s condition was followed by medical personnel and, because of his complaints of pain, he was seen by a specialist. There is no proof in the medical records that the course of treatment in any way altered the outcome or prognosis of Movant’s finger. Now having had the opportunity to review the medical records submitted, the Court concludes there is nothing patently revealing therein. Thus, an expert medical affidavit is required in this instance in order for Movant to establish that his Claim has the appearance of merit.

Because it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; Rosenhack v State of New York, 112 Misc 2d 967, 968 [Ct Cl 1982]; Flaherty Corp. v State of New York [New York State Parks & Recreation Div.], 102 Misc 2d 438, 440 [Ct Cl 1979]), Movant’s motion is denied.

The Court concludes, however, that the interests of justice would be best served by permitting Movant to reapply for permission to file a late claim, if he so desires. On such re-application, he must establish that his cause of action for medical malpractice has the appearance of merit by the affidavit of an expert. The application, moreover, must be timely filed in compliance with the underlying two-year-and-six-month Statute of Limitations (CPLR § 214-a).

Accordingly, it is ORDERED that the motion be denied without prejudice to the right of Movant to reapply for the same relief.


January 16, 2009
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers were read and considered on Movant’s request for permission to serve and file a late claim pursuant to Court of Claims Act § 10(6):

Papers Numbered

Motion, Proposed Claim & Exhibits
attached 1

Affirmation in Opposition 2




[1].In his previous motion papers, Movant asserted he was injured on August 1, 2007.
[2].In his previous motion papers, Movant asserted this occurred on August 2, 2007.