Late claim motion by inmate claimant proceeding pro se granted with regard to negligence cause of action surrounding slip and fall, denied with regard to medical malpractice. No expert affidavit, or self-explanatory medical records.
|Claimant short name:||GOMEZ|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||PEDRO GOMEZ, PRO SE|
|Defendant's attorney:||HON. ANDREW M. CUOMO, NEW YORK STATE
BY: J. GARDNER RYAN, ASSISTANT ATTORNEY GENERAL
|Third-party defendant's attorney:|
|Signature date:||April 6, 2010|
|See also (multicaptioned case)|
The following papers were read and considered on claimant's motion for permission to serve and file a late claim:
1-4 Notice of Motion, Claim, Notice of Intention to File a Claim, Notice of Intention to File a Late Claim by Pedro Gomez
5 Affirmation by J. Gardner Ryan, Assistant Attorney General
6 Letter (undated) from Pedro Gomez, Claimant, received March 24, 2010
In order to determine an application for permission to serve and file a late claim, the Court must consider, "among other factors," the six factors set forth in Court of Claims Act §10(6). The factors stated therein are: (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 meritorious; (5) whether substantial prejudice resulted from the failure to timely serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; and (6) whether any other remedy is available.(1) The Court is afforded considerable discretion in determining whether to permit the late filing of a claim. Indeed, the presence or absence of any particular factor is not dispositive Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New York, 288 AD2d 172 (2d Dept 2001).
A copy of the proposed claim(2) should be included as well, to allow the court to ascertain the time when and place where it arose, and its nature. See Court of Claims Act §11(b); 22 NYCRR §206.6.
Additionally, the motion must be timely brought in order to allow that a late claim be filed ". . . 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 . . . " Court of Claims Act §10(6). Here, the applicable statute of limitations is three (3) years with regard to negligence, and two and one-half (2 ½) years with regard to any claim of medical malpractice, thus the motion is timely. Civil Practice Law and Rules §§214, 214-a.
A claim appears to be "meritorious" within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates that 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 (Ct Cl 1977). As the court noted in Matter of Santana v New York State Thruway Auth., supra, at 10:
"the word "meritorious" directs the court's attention to the substance of the claim, rather than to the formal sufficiency of the pleadings. The court's concern is not so much whether a particular pleading properly states a cause of action, but whether claimant indeed has a cause of action." (emphasis added).
Not just the proposed claim, but the affidavits and other exhibits presented are reviewed to determine whether the Court should exercise its discretion and grant late claim relief. See Mamedova v City University of New York, 13 Misc 3d 1211 (Ct Cl 2006).
Mr. Gomez alleges that on or about July 13, 2009 the maintenance staff at Green Haven Correctional Facility negligently failed to clean up water released during maintenance of hot water pipes on claimant's housing unit, failed to close the area to traffic, and failed to post warning signs, causing claimant - a "physically infirmed" inmate - to slip, fall and suffer injury around noon of that day. He states that he hurt his back, head and leg. Thereafter, he claims, he failed to receive adequate medical treatment. Medical personnel "callously and deliberately refused to render prompt and proper treatment and are leaving me in extreme pain," are not allowing him to "receive any pain medication because of heart problems," and have refused to refer him "to a specialist for proper treatment." [Claim, ¶2(1); Notice of Intention to File a Claim, Notice of Intention to File a Late Claim].
Claimant alleges he filed inmate grievances regarding the maintenance staff's failures, as well as the alleged failure to provide him with medical treatment. With regard to the maintenance staff, he asserts that the IGRC decided that they were "negligent in failing to close the company to traffic and place 'wet floor signs.' " [Notice of Intention to File a Claim, Notice of Intention to File a Late Claim]. With regard to the grievance concerning inadequate medical treatment, he asserts that the IGRC agreed they were wrong, but did "nothing else." [Claim ¶2 (2)].
Claimant addresses only some of the late claim factors. He states that he was late in filing because he speaks only a little English, but does not write or read it, and while he was able to get help from a fellow inmate to file grievances concerning the incident, he was moved to another facility after the grievance process was completed, losing touch with his inmate helper. He claims that inmate staff at the facility's law library sought payment for assistance, and that it is only recently that he was able obtain help from another inmate.
In opposition to the motion defendant has included only an attorney's affirmation, and does not attach any affidavit by a person with knowledge, who might refute claimant's sworn allegations. Defendant notes that claimant did not include copies of the asserted grievances or medical records, or other indicia that the event he describes occurred, however claimant thereafter submitted a letter reply served upon counsel for defendant, that attaches some of these documents.
The closely related factors of notice, opportunity to investigate and prejudice to the State, considered together, weigh toward granting the motion. The events occurred a short time before claimant first sought relief by motion - it appears to have been served in late January 2010 - and defendant has done little more than say that because the grievances were not attached to the moving papers (although the specifics of claimant's having fallen July 13, 2009, referable to a specific maintenance event likely well-documented) there is not enough detail to allow an opportunity to investigate. The passage of time is not so vast that the State's ability to investigate is impeded to its prejudice in this Court's view. Indeed, counsel has made no avowal that any attempt to investigate the matter was thwarted.
"Facts stated in a motion for leave to file a late claim against the State are deemed true for purposes of motion, when not denied or contradicted in opposing affidavits . . . (citation omitted)." Sessa v State of New York, 88 Misc 2d 454, 458 (Ct Cl 1976), affd 63 AD2d 334 (3d Dept 1978), affd 47 NY2d 976 (1979); see also Cole v State of New York, 64 AD2d 1023, 1024 (4th Dept 1978)(3) .
Defendant has not submitted an affidavit from anyone with knowledge of the relevant facts and circumstances, instead relying solely on the affirmation of counsel who is without personal knowledge of the maintenance record or the events of July 13, 2009, or the claimant's treatment by medical personnel at the facility. Calzada v State of New York, 121 AD2d 988, 989-990 (1st Dept 1986); see also Smith v State of New York, 63 AD3d 1524,1525 (4th Dept 2009).
Given that claimant avows he was already housed on a unit intended for the "physically infirmed", that he is one of their number, that he fell either during the process of bleeding pipes, or immediately thereafter, that the area was not closed off to traffic, and that no signs were posted - all matters that are not belied by anyone with actual knowledge of the events - there is an appearance of merit to the claim. In this regard, the determination on the appeal of claimant's grievance entitled "Water Left on Floor" is not particularly explicit, indicating that his grievance is "accepted" to the extent that the Superintendent's determination is upheld. One set of statements in the appeal provide as follows:
"CORC notes that appropriate action was taken and staff and inmates were advised to ensure that the floors are kept free of standing water. CORC also notes that the grievant received immediate medical attention for his injury. Contrary to grievant's assertions, CORC has not been presented with sufficient evidence to substantiate any malfeasance by staff. CORC advises the grievant to address future similar concerns to the unit officer or area supervisor for remedial action, if warranted."
At least some of the foregoing suggests that there was standing water causing claimant to fall, and that all were advised to guard against it. The CORC finding of not being presented with sufficient evidence to substantiate staff malfeasance does not tell this court much for late claim purposes, however.
Additionally, claimant has appended a portion of his ambulatory health record showing that he reported having slipped, that he was utilizing a cane at the time, that he was given a cervical collar, put on a back board, and transported on a stretcher to the clinic on July 13, 2009, and received further treatment, including "CT scans". [See Letter received March 24, 2010 with attachments]. Another attachment contains notations concerning observations made by medical personnel from 9:30 p.m. on July 13, 2009 to 9:00 a.m. on July 14, 2009. [Ibid.].
As is often repeated, it is something less than prima facie proof that is required to show the appearance of merit, the most important aspect of a claim for late claim relief. In this regard, clearly an expert affidavit is suggested when reviewing late claim motions asserting medical malpractice because in some cases the absence of any expert analysis prevents an appropriate assessment of the appearance of merit of the claim. In others, however, the appearance of merit can be shown without the need of expert evaluation. See e.g. Matter of O'Shea v State of New York, 278 AD2d 237 (2d Dept 2000);(4) Doe v State of New York, UID # 2006-036-556, Claim No. None, Motion No. M-71559 (Schweitzer, J., September 21, 2006).(5)
Here, after careful review of all the papers submitted on the motion, claimant has established the appearance of merit with regard to his negligence cause of action surrounding his slip and fall on July 13, 2009 proximately caused by a failure to clean up or warn about standing water, but has not established the appearance of merit to a claim of medical malpractice, either through the use of a medical expert's affidavit, or self-explanatory medical records.
Based on the foregoing, and after carefully balancing the pertinent factors, the Court exercises its discretion and grants, in part, claimant's motion [M-77788] for late claim relief. Claimant may serve and file a claim similar to the one proposed not including a cause of action for medical malpractice in accordance with the relevant provisions of the Court of Claims Act and the Uniform Rules for the Court of Claims, including those pertaining to manner of service and payment of the filing fee, within forty (40) days of the filing date of this decision and order.
April 6, 2010
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims
1. The Defendant has not opposed the motion on the ground of availability of another remedy, therefore this factor is presumed to weigh in claimant's favor. Cole v State of New York, 64 AD2d 1023, 1024 (4th Dept 1978) ["Although the State argues in this appeal that claimant's inference of notice to it is based on equivocal facts, it filed no affidavit with the court claiming either prejudice or lack of notice. When answering affidavits are not produced, the facts alleged in the moving affidavits will be taken by the court as true . . .(citations omitted)."]
2. Court of Claims Act § 10(6) states in pertinent part: ". . . The claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application. . ."
3. "When answering affidavits are not produced, the facts alleged in the moving affidavits will be taken by the court as true . . . (citation omitted)." Cole v State of New York, 64 AD2d 1023, 1024 (4th Dept 1978).
4. Late claim relief granted. "[T]he Court of Claims did not impermissibly cast itself in the role of a medical expert when it determined that the hospital records submitted by the claimants supported the assertion that the claimant . . . was not treated for more than six hours after he entered the emergency room." O'Shea v State of New York, supra.
5. "Contrary to defendant's assertion, the court does not require an affidavit from a psychiatric expert in order to find apparent merit to the proposed claim (Morales v State of New York, 292 AD2d 455 [2d Dept 2002]; Caracci v State of New York, 178 AD2d 876 [3d Dept 1991]; DePaolo v State of New York, 99 AD2d 762 [2d Dept 1984]), notwithstanding that psychiatric testimony may be relevant at least to some of the potential bases of liability arising out of the alleged events."