Late claim application denied
|Claimant short name:||RAHMAN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Claimant's attorney:||MAHBUBUR RAHMAN
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
By: Paul F. Cagino, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 8, 2018|
|See also (multicaptioned case)|
The following papers numbered 1-2 were read and considered by the Court on movant's late claim application:
Motion for Permission to File a Late Claim, Notice of Intention to File a Claim....1
Attorney's Affirmation in Opposition and Exhibit...................................................2
Movant brings this application seeking leave to serve and file a late claim. Movant has not included a proposed late claim with his motion papers; however he has included a Notice of Intention to File a Claim. The notice of intention alleges that during movant's incarceration, he slipped and fractured his ankle "on the recreation deck of VCBC" and "never received proper medical attention." Movant also claims to have developed a "fungus issue" from mildew in the showers and was not given proper medical care other than a "basic fungus cream." Movant does not set forth any dates in his notice of intention.
Movant's late claim application is deficient in numerous aspects. Significantly, the failure to include a proposed claim detailing a specified date of the alleged medical negligence impacts the Court's jurisdiction over movant's application.(1) Specifically, Court of Claims Act § 10 (6) provides that a late claim application must be brought "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 [emphasis added]." The failure to bring a late claim application before the expiration of the relevant statute of limitations would preclude the Court from considering the application because the failure to file a late claim application within the proscribed time period is a jurisdictional defect and the Court is without discretionary power to grant nunc pro tunc relief (see Matter of Miller v State of New York, 283 AD2d 830 [3d Dept 2001]; Bergmann v State of New York, 281 AD2d 731, 733 [3d Dept 2001]).
To the extent that this Court has jurisdiction over movant's late claim application, the application would nonetheless fail. 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 Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 ).
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 [Ct Cl 1992]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977] ). "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 [3d Dept 1995]).
Most significantly, movant has failed to establish the appearance of merit of his allegations (see Langner v State of New York, 65 AD3d 780 [3d Dept 2009] [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 [3d Dept 2004] [late claim application denied where excuse was inadequate and proposed claim was of questionable merit]). Notably, claimant failed to submit any medical records or competent medical evidence, either from a treating physician or medical expert, to support his allegations that he was not provided with appropriate medical care and treatment (see Matter of Robinson v State of New York, 35 AD3d 948 [3d Dept 2006] [late claim application denied where claimant failed to provide medical records or expert proof to support allegations of medical malpractice committed during his incarceration]). In the absence of such evidence, movant's unsubstantiated assertions are insufficient to establish the appearance of merit (see, Mosberg v Elahi, 176 AD2d 710 [2d Dept 1991], 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 lay persons]).
Accordingly, movant's application is DENIED in all respects.
January 8, 2018
White Plains, New York
Judge of the Court of Claims
1. Similarly, to the extent that movant's application may be considered as an application to treat movant's Notice of Intention to File a Claim as a claim, the absence of an alleged date of accrual impacts the Court's jurisdiction. In this respect, Court of Claims Act § 10 (8) (a) provides that an application to treat a timely served notice of intention as a claim must be made upon motion to the Court brought "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."