New York State Court of Claims

New York State Court of Claims
JOHNSTON v. STATE OF NEW YORK, # 2010-018-103, Claim No. NONE, Motion No. M-77049


Case information

UID: 2010-018-103
Claimant(s): HEATH E. JOHNSTON
Claimant short name: JOHNSTON
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): NONE
Motion number(s): M-77049
Cross-motion number(s):
Claimant's attorney: HEATH E. JOHNSTON
Pro Se
Defendant's attorney: ANDREW M. CUOMO
Attorney General of the State of New York
By: Bonnie Gail Levy, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: February 11, 2010
City: Syracuse
Official citation:
Appellate results:
See also (multicaptioned case)


Movant brings a motion seeking permission to file a late claim pursuant to Court of Claims Act 10 (6). Defendant opposes the motion.

The proposed claim sets forth both a cause of action for medical malpractice and simple negligence. Movant asserts that while working out in the weight room at Cape Vincent Correctional Facility, a weight broke crushing his little finger. He asserts that this weight had broken before. Following this incident, Movant alleges that he was not properly diagnosed or treated. According to Movant, the claim accrued on April 4, 2007. On April 10, 2007, Movant was advised by the medical staff that it would take six months for the swelling and pain to subside in his finger. He then followed-up six months later, on October 12, 2007, when he was returned to general population after being housed in the Special Housing Unit. Movant stated that when he started to do more activities in general population, the additional use of his finger caused him pain. His finger was X-rayed on October 15, 2007, which showed comminuted intra-articular fracture at the base of the right fifth distal phalanx with persistent soft tissue swelling. An outside consultation was obtained. On November 6, 2007, he was advised by Dr. Mitchell Rubinovich that his only treatment option was to do a fusion of the DIP joint. Movant asserts that an X-ray should have been performed earlier. Movant now seeks permission to file a claim against the State.

A proposed claimant who fails to timely file and serve a claim or serve a notice of intention may be permitted, upon application and in the discretion of the Court, to file 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 CPLR (Court of Claims Act 10 [6]). The motion is timely (Court of Claims Act 10 [6]; CPLR 214-a; 214 [5]).

To determine whether an application for permission to file a late claim should be granted, consideration must be given to the six factors listed in Court of Claims Act 10 (6), and any other relevant factors. The presence or absence of any one factor is not determinative (Bay Terrace Cooperative Section IV, Inc., v New York State Employees' Retirement System, Policemen's and Firemen's Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965). Instead it is a balancing of all of the factors by the Court which may warrant the granting of the application to file and serve a late claim.

Movant asserts, as an excuse for the failure to timely serve a notice of intention or to file and serve a claim in accordance with Court of Claims Act 10, that he followed the doctor's advice to wait six months for the swelling and pain to stop. However, this direction is not documented in any of the medical records, and such a direction would not preclude the service of a notice of intention. This factor does not weigh in Movant's favor.

Turning to whether the State had notice, an opportunity to investigate the facts underlying the proposed claim, or whether the State would suffer prejudice if the application was granted, these factors, being interrelated, will be considered together. Movant asserts that the State had notice of the essential facts relating to Movant's claim because he filed a grievance with the facility on December 26, 2007, and then he "filed" a "Notice of Intent To File a Claim"(1) on January 3, 2008. Defendant argues that the delay in bringing a claim has caused the State to suffer substantial prejudice because the delay now precludes investigation of Movant's complaints and pursuit of further medical treatment. It is also argued that the State had no notice of any alleged defect with the weight, and the delay in bringing this claim has prevented the State from preserving records with respect to the alleged weight.

Clearly, there has been a significant delay in placing the State on notice of the facts underlying Movant's claim, as eight months passed before the grievance was filed. Particularly, relating to the negligence action for the broken weight, the recollection of witnesses will be important and may have been impacted by the delay, as a broken weight may not stand out in the memory of a correction officer(s) regularly working in the yard or recreation room at a prison. Moreover, the weight may no longer be available for inspection since a Freedom of Information Request failed to turn up any work orders for the weight, which could mean it is no longer available. It must be kept in mind, however, that even a timely claim could have resulted in the same loss of the weight, as it could have easily been discarded within 90 days of the incident if it wasn't repairable. Nonetheless, there is a daily log noting the broken weight and the correction officer who removed it from the recreation room. There are also medical records with the names of the providers available evidencing the medical care Movant received. So, there is some information by which Defendant can investigate this matter. The notice factor clearly weighs against granting this application. The ability to investigate these issues is somewhat impacted by the failure to timely file which does prejudice the Defendant. However, the Court does not find that this results in substantial prejudice.

The next factor, whether the claim appears to be meritorious, is referred to as the most essential factor. Unlike a party who has timely filed a claim, one seeking permission to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199). Generally, a proposed claim meets this standard if it is not patently groundless, frivolous, or legally defective, and upon consideration of the entire record there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11). The basis for the claim is twofold, medical malpractice, and negligence in the failure to remove or fix a weight in the recreation room at the prison.

Movant has failed to provide sufficient information to permit this Court to determine that he has a potentially meritorious medical malpractice cause of action. No expert medical affidavit was provided asserting facts evidencing a meritorious cause of action (Colson v State of New York, 115 Misc 2d 402), and no medical records were provided which might permit this Court to determine, in the absence of expert testimony, that the proposed claim is potentially meritorious (DePaolo v State of New York, 99 AD2d 762 [claimant's medical records established condition which based upon the packaging literature of Motrin should have precluded the use of the drug]). The medical records submitted do reflect Movant's complaints regarding his finger in April and indicate the finger was splinted. A followup visit five days after the incident indicates he was able to move his finger and all joints without any ecchymosis. There is no followup until October 12, 2007, despite other visits to the infirmary on July 4(2) and July 29, 2007. There is no indication in the medical records that Claimant was told to wait six months for his finger to heal.

The records from October show that X-ray was performed in October, and he was diagnosed with a comminuted intra-articular fracture at the base of the right fifth distal phalanx with persistent soft tissue swelling. The records from November reflect he complained of pain and swelling. Movant consistently contributed these problems with his right finger to the broken weight. However, despite this new diagnosis, the Court cannot presume that the treatment Movant received in July deviated from the standard of care. Nothing in Dr. Rubinovich's letter reflects that the prior evaluation and treatment were improper, or that other treatment could have eliminated or prevented Movant's current condition (see Schreck v State of New York, 81 AD2d 882; Colson v State of New York, supra; Favicchio v State of New York, 144 Misc 2d 212). Even with the current diagnosis of the comminuted intra-articular fracture, neither the doctor nor Movant felt surgery was necessary at this time, and no other treatment was suggested. Reference in the second X-ray report (Movant's Exhibit J) to an old fracture, still does not establish that the earlier treatment of his finger with a splint for a few days was a deviation from the standard of care. Thus, Movant has not set forth sufficient information so that this Court can find that there is reasonable cause to believe he has a viable medical malpractice claim.

Nonetheless, Movant has met the minimal standard on this motion for the negligence cause of action for the broken weight. He was lifting weights at a State operated facility and asserts that the weight was broken and had been broken before. He points to a note in the logbook of the facility referencing the removal of the broken weight and his injury. This is sufficient to meet the low threshold.

The final factor to be considered is whether Movant has any other available remedy. Movant has no other remedy.

Upon balancing all of the factors in the Court of Claims Act 10 (6), this Court DENIES Movant's motion as it relates to the portion of the proposed claim seeking damages for medical malpractice without prejudice. The motion is GRANTED as it relates to the negligence cause of action. The Movant shall be permitted to file and serve the proposed claim only to the extent of his allegations that the State was negligent in allowing a weight which was broken before to be in the recreation room where it fell onto Movant's little finger causing him injury. The claim as to that cause of action alone shall be filed and served in accordance with Court of Claims Act 11 and all other Uniform Rules for the Court of Claims within 45 days of the date this Decision and Order is filed with the Clerk of the Court. A filing fee or application pursuant to Court of Claims Act 11-a shall be submitted at the time the proposed claim is submitted for filing.

February 11, 2010

Syracuse, New York


Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

1. Motion for Permission to File a Late Claim by Heath E. Johnston, Pro Se, in support, sworn to July 22, 2009, with exhibits attached thereto.

2. Affirmation of Bonnie Gail Levy, Esquire, Assistant Attorney General, in opposition.

3. "Claimant's" (Movant's) Reply to Affirmation in Opposition, of Heath E. Johnston, Pro Se, sworn to October 8, 2009, with exhibit attached thereto.

1. Since 1995 notices of intention no longer have to be filed with the Clerk of the Court of Claims (see Court of Claims Act 11 [a] [i], as amended by L. 1995, Ch 466 ). The Clerk's Office no longer accepts notices of intention for filing.

2. The writing of the nurse is difficult to read. The date appears to be a "4" but it could also be a "6" or "9." In any event, there are only the two visits to the infirmary in July.