Permission to file late claim is denied.
|Claimant short name:||WALTON|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :||The Court has amended the caption sua sponte to reflect the State of New York as the only proper defendant.|
|Judge:||DIANE L. FITZPATRICK|
|Claimant's attorney:||ANDRE WALTON
|Defendant's attorney:||ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Ray A. Kyles, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 20, 2017|
|See also (multicaptioned case)|
Movant seeks permission to file a late claim. Defendant opposes the motion. Movant filed another document seeking to amend a motion for permission to file a late claim which has been treated as response document to this motion.
Court of Claims Act section 10 (6), in the discretion of the Court, can permit a claimant who fails to timely file and serve a claim or serve a notice of intention to file a claim to bring a claim which complies with section 11 of the Court of Claims Act 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 ). Thus, the initial determination is always whether the motion is timely. The Court looks to the cause of action Movant seeks to assert and the time limitations under the CPLR for bringing such an action.
Here, Movant's submissions have not provided sufficient information to allow the Court to determine whether the motion is timely.(2) His submissions do not set forth a specific date of accrual, but refers to the claim arising in December 2015. In another document, he indicates that a doctor, Manual Palao, was aware of Movant's medical condition in December 2013, and his condition worsened in December 2014, and he didn't receive medication until January 2016. He seems to raise a possible medical malpractice cause of action and more clearly asserts a constitutional tort cause of action for deliberate indifference to his medical needs amounting to cruel and unusual punishment. A medical malpractice cause of action must be brought within 2½ years after the alleged "act, omission or failure" or the last treatment where there is continuous treatment" (CPLR 214-a). A failure to treat, as opposed to improper or incorrect treatment, does not toll the statute of limitations as continuous treatment (see DeMarco v Santo, 43 AD3d 1285 [4th Dept 2007]). A cause of action for a constitutional tort has a three-year limitation period (Brown v State of New York, 250 AD2d 314, 319 [3d Dept 1998]). The absence of the necessary factual information to determine whether the motion is timely also exposes a proposed claim(3) which lacks sufficient jurisdictional information to dismissal for failure to comply with Court of Claims Act section 11 (b).
In this context, even if the Court were to consider the six factors listed in Court of Claims Act section 10 (6), Movant's motion would be denied. Movant points to his imprisonment and difficulty properly and timely serving the State as the excuses for his untimely filing of the claim or service of a notice of intention. Imprisonment, however, is not a valid excuse (see Bommarito v State of New York, 35 AD2d 458 [4th Dept 1971]; Peterson v State of New York, 84 Misc 2d 296, 1005 [Ct Cl 1975]). Nor has Movant provided sufficient information or support to permit the Court to find the proposed claim is potentially meritorious - that 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 Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). To the extent that Movant seeks to assert a medical malpractice cause of action, some expert support is necessary to permit the Court to find a potential deviation from the standard of care (see Colson v State of New York, 115 Misc 2d 402 [Ct Cl 1982]). Movant's second notice of motion and "Affidavit Request to Amend, Motion for Permission to File a Late Claim" provides no additional facts to support granting Movant permission to file a late claim. Movant merely reiterates his arguments that his constitutional tort cause of action meets the standard of Brown v State of New York, 89 NY2d 172 . Movant's submissions do not permit substantive consideration of the factors and do not meet the jurisdictional requirements of Court of Claims Act section 11 (b).
For all of the foregoing reasons, Movant's motion must be DENIED.
November 20, 2017
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following in deciding this motion:
1) "Motion for Permission to File a Late Claim" which was verified by Movant on August 2, 2017, with attachments thereto.
2) Affirmation in opposition of Ray A. Kyles, Esquire, with exhibits attached thereto.
3) "Notice of Motion - Request to Amend, Motion to File a Late Claim," and Affidavit Request to Amend, Motion for Permission to file a Late Claim" verified by Movant on August 9, 2017.
2. The Court notes that by Decision and Order dated November 14, 2016, the Court denied a prior document filed by Movant labeled a "Motion of Intention to File Claim" which was treated as a motion. The Court found that the document was actually a Notice of Intention to File a Claim, which was served upon the defendant on July 8, 2016 (see Walton v State of New York, UID No. 2016-018-748 [Ct Cl, Fitzpatrick, J., Nov. 14, 2016]). It is possible that Movant's claim for some cause(s) of action may be timely without a motion for a late claim if the notice of intention was timely and properly served (see Court of Claims Act § 10 [3-a]).
3. It may be that the submissions were not intended to be considered as a proposed claim, as he states in paragraph 4 that he will forward a copy of the claim and cash advancement by the end of September 2017.