New York State Court of Claims

New York State Court of Claims


Motion to deem a notice of intention a claim or, alternatively, for leave to serve and file a late claim denied. Movant did not serve notice of intention timely and no appearance of merit shown.

Case information

UID: 2010-010-003
Claimant short name: HARDY
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): NONE
Motion number(s): M-77175
Cross-motion number(s):
Judge: Terry Jane Ruderman
Claimant's attorney: POPICK, RUTMAN & JAW
By: Mitchell R. Drach, Esq.
Defendant's attorney: HON. ANDREW M. CUOMO
Attorney General for the State of New York
By: Jeane L. Strickland Smith, Assistant Attorney General
Third-party defendant's attorney:
Signature date: January 29, 2010
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


The following papers numbered 1-3 were read and considered by the Court on movant's motion to deem a notice of intention a claim or, alternatively, for leave to serve and file a late claim:

Notice of Motion, Attorney's Supporting Affirmation and Exhibits........................1

Affirmation in Opposition and Exhibits...................................................................2

Reply Affirmation with Exhibits...............................................................................3

Notice of Intention

Movant seeks, pursuant to Court of Claims Act 10(8)(a), to have his notice of intention deemed a claim. Specifically, Court of Claims Act 10(8)(a) provides:

"[a] claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The court shall not grant such application unless: it is made upon motion 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; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant [emphasis added]."

As movant's counsel concedes, however, the notice of intention was served one day late (see Movant's Attorney's Affirmation and Claimant's Affidavit which asserts an accrual date of November 27, 2007 through March 12, 2008; see Jackson v State of New York, 85 AD2d 818 [notice of intention was mailed one day prior to the expiration of the 90-day time period; however service was untimely because it was not complete until receipt and that occurred two days after the statutory time period had lapsed]). Thus, movant did not "timely serve a notice of intention" and therefore cannot avail himself of the remedy under the statute (Court of Claims Act 10[8][a]). Accordingly, that branch of his application which seeks to have the notice of intention deemed a claim is DENIED (see Fulton v State of New York, 35 AD3d 977, 979 [relief sought under Court of Claims Act 10(8)(a) is conditioned upon timely service of a notice of intention]).

Late Claim

Alternatively, movant seeks leave to serve and file a late claim in the form of the proposed claim (Movant's Ex. A). The proposed claim alleges that during movant's incarceration by the New York State Department of Correctional Services, from November of 2007 until March of 2008, movant sustained personal injuries arising out of alleged departures from proper and accepted medical practice in failing to provide him with appropriate care, diagnostic testing and treatment, which resulted in an exacerbation of movant's ear infection and, inter alia, loss of hearing.

The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in Subdivision 6 of Section 10 of the Court of Claims Act: (1) whether the delay in filing 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 the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979).

The Court has considered the above six factors. Movant's purported excuse for his failure to timely serve and file a claim is that he was incarcerated/hospitalized and had continuing medical problems which prevented him from timely commencing an action (Movant's Affidavit, Movant's Ex. B; Attorney's Reply, 7). Absent any proof of movant's purported incapacity, either in the form of a physician's affidavit or a medical record establishing movant's incapacity to commence a lawsuit or to seek counsel during the first 90 days after the claim accrued, the Court finds the purported excuse to be unsubstantiated (see Quilliam v State of New York, 282 AD2d 590 [claimant did not substantiate allegation of incapacity with medical proof]; Klingler v State of New York, 213 AD2d 378, 379 [claimant's 9-month delay in filing her claim is not adequately excused by her physician's explanation that she had suffered, inter alia, a cerebral concussion and cervical strain for an unspecified period of time after the accident]; Goldstein v State of New York, 75 AD2d 613 [alleged incapacity was not a valid excuse for late filing absent a physician's affidavit or hospital record]). Additionally, claimant's confinement in a correctional facility is not an acceptable excuse for his delay (see Matter of Robinson v State of New York, 35 AD3d 948,949).

Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). "A general allegation of negligence on the part of the State is insufficient to establish a meritorious cause of action" (Witko v State of New York, 212 AD2d 889, 891). Here, the proposed claim is not adequately detailed with specific allegations and corresponding dates (see Anderson v City Univ. of N.Y, at Queens Coll., 8 AD3d 413 [late claim application denied where movant failed to adequately set forth facts demonstrating claim had appearance of merit]).

Additionally, movant failed to produce any competent medical evidence, either from a treating physician or from an expert whose opinion was based upon the available medical records, to support the allegations of medical malpractice (see Matter of Robinson v State of New York, 35 AD3d 948, supra [late claim application denied where claimant failed to provide medical records or expert proof to support allegations of medical malpractice committed during his incarceration]). "Moreover, even assuming improper delay in providing treatment, it was incumbent upon claimant to show by competent expert evidence that the delay was a cause of [the] alleged ensuing medical problems" (Trottie v State of New York, 39 AD3d 1094; see also Naughton v Arden Hill Hosp., 215 AD2d 810 [even assuming defendant committed malpractice in its failure to diagnose and admit patient to hospital, there was no proof of proximate cause, i.e., that, had the patient been admitted, the risk of a heart attack would have been prevented or lessened]; Brown v State of New York, 192 AD2d 936 [no proof that delay in treatment contributed to the loss of claimant's larynx]). In the absence of such evidence, movant's own unsubstantiated assertions and speculations are insufficient to establish merit and a prima facie case (see, Mosberg v Elahi, 176 AD2d 710, affd 80 NY2d 941 [in opposition to a motion to dismiss for failure to prosecute, expert medical evidence was necessary to establish a meritorious cause of action regarding matters not within the knowledge and ordinary experience of laypersons]).

The Court has considered all of the factors under Court of Claims Act 10(6) and finds that, most significantly, movant failed to establish the appearance of merit of his proposed claim and that this factor weighed heavily in the Court's determination of whether to grant his application (see Langner v State of New York, 65 AD3d 780 [late claim application denied even though defendant admitted no prejudice where conclusory allegations were not enough to show a meritorious cause of action]; Matter of Brown v State of New York, 6 AD3d 756 [late claim application denied where excuse was inadequate and proposed claim was of questionable merit]). Upon careful consideration, the Court denies that branch of movant's application which seeks to serve and file a late claim (see Qing Liu v City Univ. of N.Y., 262 AD2d 473; Matter of Gallagher v State of New York, 236 AD2d 400).

January 29, 2010

White Plains, New York

Terry Jane Ruderman

Judge of the Court of Claims