New York State Court of Claims

New York State Court of Claims
BERCUME v. THE STATE OF NEW YORK, # 2010-015-160, Claim No. None, Motion No. M-78189


Motion to file late claim alleging injuries due to a delay in providing medical treatment was denied. Movant failed to establish inter alia the potential merit of his claim through the submission of proof in admissible form. Attorney's affirmation was insufficient, standing alone, to establish the potential merit of the claim.

Case information

UID: 2010-015-160
Claimant short name: BERCUME
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): None
Motion number(s): M-78189
Cross-motion number(s):
Claimant's attorney: Joseph R. Amisano, Esquire
Defendant's attorney: Honorable Andrew M. Cuomo, Attorney General
By: Reynolds E. Hahn, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: July 8, 2010
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Movant, Ryan Merrill Bercume, seeks permission to file a late claim pursuant to Court of Claims Act 10 (6). The proposed claim submitted in support of the motion alleges movant "suffered permanent injury as a result of Great Meadow Correctional Facility's failure to treat his wrist fracture" (movant's Exhibit A).

Movant allegedly sustained an injury to his left wrist when he fell while "playing catch" on blacktop at Great Meadow Correctional Facility on April 23, 2007. On April 24, 2007 movant sought medical treatment in the prison infirmary and a subsequent X-ray examination revealed only "[q]uestionable abnormalities" due to poor image quality. Following his release from prison on July 19, 2007, the movant sought further medical treatment for his wrist. An X-ray examination of the movant's left wrist performed in August 2007 was positive for a scaphoid wrist fracture and he was placed in a thumb spica splint. Follow-up treatment was obtained at Rochester General Hospital on September 5, 2007, October 3, 2007, October 8, 2007 and October 12, 2007. The medical report dated September 5, 2007 reflects that the movant was injured five months previously when he fell on blacktop during the term of his incarceration. This report includes the assessment that movant sustained "a delayed union of a left scaphoid fracture" (movant's Exhibit B). The medical reports of October 3, 2007, October 8, 2007 and October 12, 2007 reflect a non-healed scaphoid fracture (id.). An operative report dated November 9, 2007 reflects that movant underwent "open reduction internal fixation of left scaphoid nonunion with autogenous bone graft" (movant's Exhibit B). Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following 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."

The first issue for determination upon a late claim motion is whether the application is timely. Subdivision 6 of Section 10 requires that a motion to file a late claim be made "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." In opposition to the instant motion, the State contends that the proposed claim alleges a cause of action for medical malpractice and is therefore barred by the 2 -year statute of limitations (CPLR 214-a). Movant contends in reply that the alleged cause of action sounds in ordinary negligence for which a three-year statute of limitations applies (CPLR 214). Movant's counsel states in this regard that "[t]he failure on the part of the prison staff to allow [movant] access to the prison's infirmary would lie in simple negligence" (Reply Affirmation of Joseph R. Amisano, Esq.).

The State has a fundamental duty to provide adequate medical care to inmates in its prisons without undue delay (Kagan v State of New York, 221 AD2d 7 [1996]). As a result, "whenever 'delays in diagnosis and/or treatment [are] a proximate or aggravating cause of [a] claimed injury', the State may be liable" (Id. at 11 [citation omitted]). As the Appellate Division noted in Kagan, the duty to provide medical care to prisoners has been defined in terms of both negligence and malpractice. Where nondiscretionary medical protocols are breached causing injury, a claimant may recover on a theory of ministerial neglect. Notably, movant alleges in the proposed claim an accrual date of April 24, 2007, the date of the initial X-ray examination at Great Meadow.

The reference in Court of Claims Act 10 (6) to Article 2 of the CPLR has been interpreted to require only that a motion for late claim relief must be made prior to the expiration of the statute of limitations, not the return date of the motion or the issuance of the order deciding it (see Thompson v State of New York, 258 App Div 758 [1939]; Johnson v State of New York, 131 Misc 2d 630 [Ct Cl 1986]; Jenkins v State of New York, 119 Misc 2d 144 [1983]; Matteo v State of New York, 203 Misc 523 [Ct Cl 1952]). Here, however, the motion was not filed until April 26, 2010. If, as movant alleges in the proposed claim, the negligence cause of action accrued on April 24, 2007, the instant motion filed on April 26, 2010 is untimely. However, considering movant's contention in support of the instant motion that it was the failure to provide medical care which gives rise to the proposed claim, and the fact that movant was not released from prison until July 19, 2007, the Court will consider the merits of the motion.

Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965 [1994]). The statutory factors are not exhaustive nor is any one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117 [1991]). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254 [1993]).

Movant avers that prior to contacting counsel on July 13, 2009 he was unaware of the time limitations for filing a claim. Neither movant's ignorance of the law nor his confinement in a correctional facility provide an acceptable excuse for the delay in filing a claim (Matter of Robinson v State of New York, 35 AD3d 948 [2006]). Moreover, movant has failed to explain the delay which occurred between the date he was first advised by counsel of the need to serve and file a claim in the Court of Claims and the filing of the instant motion.

The intertwined issues of notice, opportunity to investigate and prejudice to the State will be considered together. Movant was treated for his injury in the prison infirmary on April 24, 2007 and the State makes no argument that it will suffer prejudice in the event late claim relief is granted.

With respect to the required showing of merit, the claim is sufficiently established if the movant demonstrates that the proposed claim is not patently groundless, frivolous, or legally defective and there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [1977]; Fowx v State of New York, 12 Misc 3d 1184 [2006]). As set forth previously, the breach of a nondiscretionary medical protocol may support a cause of action for ministerial neglect (Kagan v State of New York, supra). Liability does not attach, however, absent competent medical evidence that the negligence was a proximate cause of the inmate's ensuing medical problems (Trottie v State of New York, 39 AD3d 1094 [2007]; Lowe v State of New York, 35 AD3d 1281 [2006]). Here, the medical evidence submitted in support of the motion reflects that the X-ray examination of the movant's wrist prior to his release from prison was inconclusive and that he was diagnosed with a fracture subsequent to his release from prison nearly five months later. While this medical evidence may sufficiently establish, for the purpose of the instant motion, that the movant sustained a fracture in prison that was not diagnosed, it fails to establish a violation of a nondiscretionary medical protocol. Movant failed to submit medical records from the Department of Correctional Services establishing that he requested and was denied treatment, or any other evidence of a breach of a nondiscretionary protocol in support of the motion.

Movant avers in his affidavit submitted in support of the motion that "[t]he x-rays were read by Dr. Eric Hoover who was unable to make a diagnosis due to poor quality of the images. No further examination or x-rays were taken."(1) While movant's counsel avers that movant "repeatedly asked Great Meadow Correctional Facility staff members for medical treatment for his wrist injury and he was repeatedly denied assistance and access to the infirmary, the movant himself makes no such statement. Movant's attorney's affirmation, not based on personal knowledge, has no probative value (see Zuckerman v City of New York, 49 NY2d 557, 563 [1980]; Lavine v Town of Lake Luzerne , 296 AD2d 793, lv denied 99 NY2d 501 [2002]). Absent competent evidence showing that movant requested and was denied medical treatment or that any nondiscretionary medical protocol was breached, the Court is unable to conclude that the movant established the potential merit of a ministerial negligence claim.

As to the final factor to be considered, it has not been suggested that an alternative remedy exists.

As the totality of factors weigh against granting the instant motion, the motion is denied.

July 8, 2010

Saratoga Springs, New York


Judge of the Court of Claims

The Court considered the following papers:

  1. Notice of motion dated April 21, 2010;
  2. Affirmation of Joseph R. Amisano dated April 16, 2010 with exhibits;
  3. Affidavit of Ryan Merrill Bercume sworn to April 19, 2010 with exhibit;
  4. Affirmation of Reynolds E. Hahn dated May 7, 2010;
  5. Affirmation of Joseph R. Amisano dated May 14, 2010.

1. Whether or not follow-up care was medically necessary on these facts alone is a matter not discernable by a fact finder based on common knowledge and therefore sounds in medical malpractice (Coursen v New York Hosp.- Cornell Medical Center, 114 AD2d 254, 256 [1986]; Matter of Barresi v State of New York, 232 AD2d 962 [1996]; Berger v State of New York, 171 AD2d 713 [1991]). As set forth hereinabove, however, such a claim is time-barred.