Late claim motion was denied.
|Claimant short name:||JONES|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Rashea Jones, Pro Se|
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: Carol A. Cocchiola, AAG
|Third-party defendant's attorney:|
|Signature date:||July 7, 2010|
|See also (multicaptioned case)|
Rashea Jones moves for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). Mr. Jones, who has not submitted a proposed claim, states in his affidavit that on March 18, 2008, while he was incarcerated at Attica Correctional Facility, a "hand specialist" removed a bone from his right wrist without his consent, leaving him with "little [to] almost no use of his right hand."
In order to determine this motion, six factors enumerated in the Act must be considered, i.e., whether: (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable; and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.(1)
With regard to notice, defendant presumably has access to claimant's medical records. But if such were sufficient to impute notice for the purpose of the Act, that would mean that in any medical malpractice case, the notice factor would automatically be satisfied. See Matter of O'Shea v State of New York, Ct Cl filed November 5, 1999 (unreported, motion no. M-59853, Marin, J.), affd 278 AD2d 237, 717 NYS2d 293 (2d Dept 2000). The medical records do, however, offer an opportunity to investigate at this time, and defendant has pointed to no identifiable prejudice.
With regard to an alternative remedy, although not submitted to the Court, claimant included with the set of motion papers served on defendant a copy of a "Notice of Intention to File a Claim" which states that the surgery in question was performed at Kingston Hospital. Accordingly, claimant may have a cause of action against such facility or the physician who performed the surgery there. As to excuse, claimant states that he "did not find out the full extent of his injuries . . . until March 30, 2010," although his notice of intention states that the specialist told him a week after the surgery that he had removed the bone.
Finally, it must be determined whether the claim appears meritorious. It is undisputed that the State "owes a duty to its incarcerated citizens to provide them with adequate medical care." Kagan v State of New York, 221 AD2d 7, 8, (2d Dept 1996). However, the State is not liable for treatment provided to an inmate by an outside physician or at an outside medical facility. Rivers v State of New York, 159 AD2d 788, 789 (3d Dept 1990), lv denied, 76 NY2d 701 (1990). Accordingly, the State is not liable for deficient treatment, if any, provided to claimant at Kingston Hospital. In addition, even if claimant were complaining of medical treatment he received inside a State correctional facility, he has not submitted an affidavit from a physician as to the merit of his claim. Nor has he submitted any medical records. There is authority that a physician's affidavit is a condition precedent to a finding of merit on a late claim motion. See, e.g., Schreck v State of New York, 81 AD2d 882 (2d Dept 1981); Favicchio v State of New York, 144 Misc 2d 212 (Ct Cl 1989); and Jolley v State of New York, 106 Misc 2d 550 (Ct Cl 1980). A number of appellate cases have held that a medical affidavit is not necessary, but in such cases, claimants submitted medical records patently sufficient to show the appearance of medical malpractice. See Matter of Caracci v State of New York, 178 AD2d 876 (3d Dept 1991); O'Shea, supra; and DePaolo v State of New York, 99 AD2d 762 (2d Dept 1984). In view of the foregoing, claimant has failed to demonstrate merit for the purposes of the Act. See Sands v State of New York, 49 AD3d 444 (1st Dept 2008).
Accordingly, having considered the six factors in view of the parties' submissions(2) , IT IS ORDERED that motion no. M-78248 be denied.
July 7, 2010
New York, New York
Alan C. Marin
Judge of the Court of Claims
1. See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 (1982); Scarver v State of New York, 233 AD2d 858 (4th Dept 1996).
2. The following were reviewed: claimant's "Motion for Permission to File Late Claim"; and defendant's affirmation in opposition with exhibit A.