Claimant moves for permission to file a late claim pursuant to Court of Claims
Act § 10 (6). Claimant is an inmate at Clinton Correctional Facility
(Clinton). Claimant alleges that, on March 20, 2008, he underwent “surgery
for hemorrhoids, at Alice Hyde Medical Center, with a Discharge Summary,
indicated that I was not to receive any Motrin, Aspirin nor Advil for pain of
hemorrhoids after surgery.” Claimant further alleges that the medical
staff at Clinton thereafter gave him “Ibuprofen 200 mg 3x aday, which
caused me to begin hemorrhagin” and allegedly leading to claimant’s
hospitalization for bleeding.
Court of Claims Act § 10 (6) provides that the Court, upon application and
in its discretion, may permit the late filing and service of a claim “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.” Claimant’s cause of action sounding in medical/nursing
malpractice is not time-barred by CPLR Article 2.
In determining the application, Court of Claims Act § 10 (6) provides
In reviewing a late claim application, “the Court of Claims is required
to consider, among other factors, those enumerated in Court of Claims Act §
10 (6), no one factor being controlling” (Matter of Donaldson v State
of New York, 167 AD2d 805, 806 [3d Dept 1990]; see Matter of Duffy
v State of New York, 264 AD2d 911, 912 [3d Dept 1999]). In fact,
“[n]othing in the statute makes the presence or absence of any one factor
determinative” (Bay Terrace Coop. Section IV, Inc. v New York State
Employees’ Retirement System Policemen's and Firemen's Retirement
System, 55 NY2d 979, 981 ).
Further, “it is well settled that the Court of Claims’ broad
discretion in this area should be disturbed only in the face of clear
abuse” (Calco v State of New York, 165 AD2d 117, 119 [3d Dept
1991], lv denied 78 NY2d 852 ).
Claimant fails to offer a reasonable excuse for the delay in filing the claim.
Claimant’s alleged lack of access to either “legal counsel” or
to the “prison law library,” does not constitute a reasonable excuse
for his failure to timely file the claim.
The Court finds that the claimant’s medical records regarding his
treatment at Alice Hyde Medical Center, portions of which are attached to
defendant’s opposition papers, together with Clinton’s medical
records regarding claimant, provide defendant opportunity to investigate the
claim and to avoid prejudice in defending the claim.
Claimant has no available alternative remedy.
Section 10 (6) requires that the proposed claim not be “patently
groundless, frivolous or legally defective, and [that] upon consideration of the
entire record, there is cause to believe that a valid cause of action
exists” (Rizzo v State of New York, 2 Misc 3d 829, 834 [Ct Cl
2003]; see Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl
2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997];
Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl
1977]). In Witko v State of New York (212 AD2d 889, 891 [3d Dept 1995]),
the court noted that a proposed claim offered in a section 10 (6) application
need only have “the appearance of merit.”
Defendant has not offered an affidavit disputing the factual allegations of the
proposed claim and the allegations are deemed true for purposes of this
application (Schweickert v State of New York, 64 AD2d 1026 [4th Dept
1978]; Cole v State of New York, 64 AD2d 1023 [4th Dept 1978]).
The Court finds that the claim, together with the attached exhibits, alleging
that defendant failed to read and follow claimant’s discharge
instructions, is not patently without merit and that, accepting the
claimant’s allegations as true, provides cause to believe that a cause of
action for medical/nursing malpractice exists (see Dippolito v State
of New York, 192 Misc 2d 395, 397 [Ct Cl 2002], which held that in
determining a late claim application “the court may examine the proposed
causes of action, as well as all submitted papers and exhibits”).
Based upon a balancing of the factors set forth in section 10 (6), the Court
grants the motion and claimant is directed to file and serve his claim in
compliance with §§ 11 and 11-a of the Court of Claims Act within sixty
(60) days of the filing of this decision and order with the Clerk of the Court