New York State Court of Claims

New York State Court of Claims

MASON v. THE STATE OF NEW YORK, #2009-041-040, Claim No. None, Motion No. M-76910


Application to file late claim alleging nursing/medical malpractice is granted as allegations provide cause to believe a valid cause of action may exist and the defendant has not been substantially prejudiced by delay in prosecuting the claim.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
New York State Attorney GeneralBy: Joan Matalavage, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 13, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


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 that:
“[T]he court shall consider, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy.”
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 [1982]).

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 [1991]).

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 of Claims.

October 13, 2009
Albany, New York

Judge of the Court of Claims

Papers Considered:

  1. Notice of Motion, filed July 1, 2009;
  2. Affidavit of Leonard Mason, sworn to June 12, 2009, and annexed exhibits;
  3. Affidavit of Joan Matalavage, sworn to September 11, 2009, and annexed exhibits.