Pro se claimant's motion for permission to late file a claim alleging neglect in medical treatment by staff at Collins Correctional Facility is denied.
|Claimant short name:||GUAMAL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||LUIS GUAMAL, PRO SE|
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
New York State Attorney General
BY: Carlton K. Brownell, III, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 6, 2018|
|See also (multicaptioned case)|
Pro se Movant Luis Guamal moves the Court for permission to late file a claim alleging neglect in medical treatment by the staff at Gowanda Correctional Facility (Gowanda) where he was incarcerated. Defendant opposes the motion.
There are two preliminary requirements which must be satisfied before the Court may consider the merits of a motion to late file a claim. First, the Court must determine if the motion is timely. A motion for late claim relief must be made "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 ). In paragraph 6 of movant's supporting affidavit, he alleges that his proposed claim "is based upon negligence, inadequate and improper medical treatment." Assuming that the negligence mentioned refers to medical negligence, then movant's causes of action all sound in medical malpractice. The statute of limitations for a medical malpractice action is two years and six months from the date of accrual (CPLR 214-a). The Court cannot determine from the motion papers whether the motion is timely as nothing in the papers indicates when the alleged medical malpractice accrued. The Court cannot grant late claim relief if there is even a possibility that the motion is untimely.
In addition, Court of Claims Act § 10 (6) requires that the claim proposed to be filed accompany a motion for late claim relief. While movant alleges in paragraph 6 of his supporting affidavit that the proposed claim is attached, no proposed claim is attached to movant's motion. The failure to attach a proposed claim has been held to be sufficient, in and of itself, to deny a motion for late claim relief (Davis v State of New York, 28 AD2d 609 [3d Dept 1967]).
In paragraph 4 of his supporting affidavit, movant alleges that he is seeking to re-serve his claim no. 128889 which he previously withdrew (see Defendant's Exhibit A). Were the Court to consider former claim no. 128889 as the proposed claim, movant's motion to late file would still be denied.
As movant correctly notes, there are several factors that must be considered on a motion for late claim relief. The first factor to consider is whether the delay in filing was excusable. Movant alleges that he was given incorrect information regarding service of a notice of intention to file a claim and that English is not his native language. However, it has been held that neither ignorance of the law nor incarceration constitute an acceptable excuse for the failure to timely file a claim (Matter of Robinson v State of New York, 35 AD3d 948 [3d Dept 2006]; Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv dismissed 99 NY2d 589 ). In addition, claim no. 128889 and half of movant's motion papers were handwritten in English, indicating that he was somehow able to write in English or with a translator, write his previous claim and the present motion papers. As such, this factor weighs against movant.
The next three factors of notice, opportunity to investigate and prejudice are interrelated and are often considered together (Brewer v State of New York, 176 Misc 2d 337 [Ct Cl 1998]). Assuming that movant is trying to re-serve his previous claim, then defendant may have had timely notice and an opportunity to investigate when it received movant's improperly served notice of intention. However, movant fails to attach a copy of the notice of intention to his motion and so it is impossible to determine if notice was sufficient to place defendant on notice and give it the opportunity to investigate the claim.
Another factor that is to be considered is whether movant has any other remedies. Unless movant can commence an action in New York State Supreme Court against the individual medical personnel who treated him, movant does not likely have any other remedy.
The most important factor to consider is merit as it would be futile to permit the filing of a meritless claim (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]). It is movant's burden to show that the proposed claim is not patently groundless, frivolous or legally defective and that there is a 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]). Movant fails, however, to attach any medical records to his motion or to provide any expert proof to show that a medical malpractice claim has merit. Accordingly, movant's motion to late file must be denied (see Perez v State of New York, 293 AD2d 918 [3d Dept 2002]).
Based on the foregoing, it is the Court's determination that the excuse for late claim relief offered by movant is inadequate and that any supposed medical malpractice claim would be of questionable merit (see Lange v State of New York, 133 AD3d 1250 [4th Dept 2015]). Accordingly, movant's motion no. M-92253 for permission to late file a claim is denied without prejudice.
August 6, 2018
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by the Court:
1. Affidavit of Luis Guamal sworn to May 7, 2018; and
2. Opposing affirmation of Assistant Attorney General Carlton K. Brownell, III, Esq. dated June 12, 2018, with attached Exhibit A.