New York State Court of Claims

New York State Court of Claims

SHEPHERD v. THE STATE OF NEW YORK, #2009-040-032, Claim No. NONE, Motion No. M-76253


Synopsis


Motion to file a late claim pursuant to Court of Claims Act § 10(6) granted in part and denied in part.

Case Information

UID:
2009-040-032
Claimant(s):
EON SHEPHERD, 96A0356
Claimant short name:
SHEPHERD
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-76253
Cross-motion number(s):

Judge:
CHRISTOPHER J. MCCARTHY
Claimant’s attorney:
Eon Shepherd, Pro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Michael C. Rizzo, Esq., AAG
Third-party defendant’s attorney:

Signature date:
April 21, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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

The proposed claim, attached to the motion papers as Exhibit A, alleges that: Movant is incarcerated at Upstate Correctional Facility (Upstate) located in Malone, New York; on October 28, 2008, Movant complained to medical department personnel at Upstate that his medications for back pain were not working and he was suffering; he also complained of migraine headaches and the medical personnel did not treat him for the headaches. The proposed Claim further asserts that, on October 29, 2008, Movant spoke to medical personnel about the pain in his right knee and he inquired as to when the knee brace, which was “taken to be repaired” (proposed Claim, ¶ 7), would be returned. He also asserts that he was not provided with his new medical boots that had been prescribed for him. Movant also complained of stomach pains and cramps and received no treatment. Movant asserts the State was negligent in failing to provide proper medical care and in failing to provide him with his knee brace and medical boots.

Pursuant to Court of Claims Act § 10(6), it is within the Court’s discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. Since the proposed claim appears to assert causes of action for medical malpractice (CPLR §214-a, a two-year-and-six-month Statute of Limitations), for medical negligence and negligence (CPLR § 214[5], a three-year Statute of Limitations), the motion is properly before the Court.

Next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979, 981 [1982]). However, the burden rests with Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).

The first factor to be considered is whether the delay in filing the claim was excusable. The Court finds Movant’s proffered excuse for the delay in timely filing and serving the claim – lack of availability of a notary because of his incarceration in a Special Housing Unit – is not a reasonable excuse. Movant asserts that he had to wait a week for notary services and, therefore, his Claim was not timely. At the same time, Movant fails to provide an explanation as to how often the Notary visits Upstate or why his Claim could not have been ready sooner. However, the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief (Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979, supra at 981).

The next three factors to be addressed – 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 – are interrelated and will be considered together. Defendant neither claims lack of notice, lack of opportunity to investigate, nor that it will be substantially prejudiced by a delay in filing a claim. The State cannot use its silence as a shield against an allegation that it had notice of the essential facts constituting the claim (Cole v State of New York, 64 AD2d 1023, 1024 [4th Dept 1978]). These factors, therefore, weigh in Movant’s favor.

The fifth factor to be considered is whether Movant has another remedy available. It appears that Movant does not have any alternate remedy.

The sixth, final and perhaps most important factor to be considered is whether the proposed claim has the appearance of merit, for 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]). It is Movant’s burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, supra at 11-12).

“It is fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons” (Rivers v State of New York, 159 AD2d 788, 789 [3d Dept 1990], lv denied 76 NY2d 701 [1990]). To maintain an action for injuries sustained while under the care and control of a medical practitioner and/or medical facility, “a party may proceed upon a theory of simple negligence or upon the more particularized theory of medical malpractice” (Hale v State of New York, 53 AD2d 1025 [4th Dept 1976], lv denied 40 NY2d 804 [1976]).

“The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by [laypersons] or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts” (Miller v Albany Med. Ctr. Hosp., 95 AD2d 977, 978 [3d Dept 1983]; see Twitchell v MacKay, 78 AD2d 125, 127 [4th Dept 1980]).

To the extent the proposed claim alleges medical malpractice, the merit of the claim must be patently revealed by medical records or supported by an expert affidavit (see Matter of Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006]; Matter of Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002]; Rosario v State of New York, 8 Misc 3d 1007[A] [Ct Cl 2005]; Vespucci v State of New York, Claim No. 112571, Motion Nos. M-72230, M-72475, dated February 16, 2007, DeBow, J. [UID No. 2007-038-505]; Jackson v State of New York, Claim No. None, Motion No. M-72630, dated January 10, 2007, Mignano, J. [UID No. 2007-029-001]). The proposed claim alleges negligent acts relating to Movant’s medical treatment at Upstate. 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 is 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).

To the extent that the proposed claim asserts a cause of action for negligence in that the State failed to return Movant’s knee brace or provide him with his medical boots, at this stage of the proceedings, it should be noted the Court generally takes as true factual allegations of a movant. Based upon the entire record, the Court finds that those proposed causes of action asserting negligence have the appearance of merit. Movant need only establish the appearance of merit; he need not prove a prima facie case at this stage of the proceedings.

In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in Movant’s favor regarding the alleged negligence causes of action regarding the medical boots and knee brace. The mix of circumstances presented by these causes of action falls well within the remedial purposes of the amendments to the Court of Claims Act enacted in 1976 (L. 1976, Ch. 280), which was designed to vest in the Court of Claims broader discretion than previously existed to permit late filing, indicating a strong concern that litigants with meritorious claims be afforded their day in court (Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, 92 Misc 2d 1033, supra). Movant has provided ample basis for a favorable exercise of this Court’s discretion to grant him leave to file a late claim against the State regarding these causes of action only.

Regarding the remainder of the proposed claim, the Court concludes 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).

Therefore, within forty-five (45) days of the date of filing of this Decision and Order, Mr. Shepherd shall file with the Clerk of the Court his proposed claim, regarding the negligence causes of action set forth above only, against the State, and serve a copy of the proposed claim upon the Attorney General by personal service or certified mail, return receipt requested. In serving and filing the claim, Movant is directed to follow all of the requirements of the Court of Claims Act, including § 11-a, regarding the filing fee, and the Uniform Rules for the Court of Claims.


April 21, 2009
Albany, New York

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


The following papers were read on Movant’s application for permission to file a late claim:
Papers Numbered


Notice of Motion, Affidavit in Support
and Exhibits attached 1

Affidavit in Opposition 2

Reply Affidavit and Exhibits attached 3