|Claimant short name:||DYE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||MAUREEN T. LICCIONE|
|Claimant's attorney:||MICHAEL DYE, pro se|
|Defendant's attorney:||HON. LETITIA JAMES, ATTORNEY GENERAL
By: Dorothy M. Keogh, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 26, 2019|
|See also (multicaptioned case)|
The movant ("Movant") is an inmate who has been incarcerated at the State correctional facility at Sing Sing ("Sing Sing"), who is proceeding pro se. Movant filed and served a motion dated May 30, 2019, seeking permission to file and serve a late claim pursuant to Court of Claims Act § 10 (6). The defendant State of New York ("Defendant") opposed the motion and Movant submitted a reply.
Movant's proposed claim alleges that Defendant was negligent in its failure to treat an "Achilles Heel" injury in a timely manner while Movant was incarcerated at Sing Sing. More specifically, Movant alleges that on February 6, 2019 at approximately 8:00 PM his left ankle was injured while playing basketball. Movant alleges that he immediately notified staff and reported to the infirmary where he was given ibuprofen and ordered back to his cell. Movant alleges that he continued to suffer pain during the night and pleaded to be seen by medical staff. He further contends that he walked to the infirmary, with the assistance of other inmates, at 8:30 the following morning, February 7, 2019, and was seen by a medical doctor. He immediately was taken to Mt. Vernon Hospital where he was diagnosed with a torn "Achilles Heel." He was placed in a cast and had surgery thirty days later. He further alleges that he then spent sixty days in the Sing-Sing infirmary. Movant asserts that the failure to further treat his injury on the night of February 6, 2019 caused twelve hours of pain and suffering and that the walk he was required to take the next morning from his cell to the infirmary, with assistance from other inmates, exacerbated his injury.
The application was filed within the relevant statute of limitations, and the Court therefore has jurisdiction to grant relief under section 10 (6). In determining whether such relief is appropriate, the Court must consider the factors listed in the statute (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 ). Those factors are whether: the delay in filing the claim was excusable; defendant had notice of the essential facts constituting the claim; defendant had an opportunity to investigate; defendant was substantially prejudiced; the claim appears to be meritorious; and the claimant has any other available remedy.
Movant contends that his delay in filing his claim beyond the ninety day period from the February 6, 2019 accrual of his claim was excusable because he was not released from the infirmary until April 23, 2019 and, therefore, had no access to the law library. Although he was discharged from the infirmary approximately two weeks before the ninety day period expired, Movant states that he was denied access to the law library and a notary during that time period. He further asserts that the claim was filed only three weeks past the ninety day limit such that Defendant is not prejudiced.
Movant also posits that Defendant had notice of the essential facts and had an opportunity to investigate. Lastly, Movant asserts that his claims are meritorious and that he will be prejudiced in the event his motion is denied because he has no other remedy available to him.
Defendant opposes the motion principally on the ground that the proposed claim lacks merit given that Movant was administered pain killers the night of February 6, 2019, was seen by a physician early the next morning and was sent to the hospital immediately thereafter. Defendant further argues that Movant has not presented an affidavit of a medical expert that supports his allegations of medical negligence or malpractice, nor has he submitted medical records showing that he received medical treatment or that he suffered any injury at all (Aff. in Opp. ¶ 18).
Defendant also contends that Movant's delay was not excusable since he was discharged from the infirmary approximately two weeks before the ninety day period expired. Finally, Defendant argues that there is no indication that staff was notified of the second event which allegedly exacerbated the original basketball injury and is the basis for the claim.
The issue of whether the proposed claim appears meritorious is the most crucial component in determining whether the Court should exercise its discretion to grant a section 10 (6) motion, since it would be futile to permit a meritless or legally deficient claim to proceed (see Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]; Sands v State of New York 49 AD3d 444 [1st Dept 2008]; see e.g. Benoit v State of New York, UID No. 2018-044-567 [Ct Cl, Schaewe, J., Nov. 7, 2018]).
In order to establish a meritorious claim, a movant must demonstrate that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (see Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]). There is a heavier burden to demonstrate merit on a party moving for permission to file a late claim than on a claimant who has complied with the provisions of the Court of Claims Act (see Nyberg v State of New York, 154 Misc 2d 199, 202-203 [Ct Cl 1992]).
"Whether the claim is grounded in negligence or medical malpractice, '[w]here medical issues are not within the ordinary experience and knowledge of lay persons, expert medical testimony is a required element of a prima facie case'" (Myers v State of New York, 46 AD3d 1030 [3d Dept 2007]; see also Davis v State of New York, 151 AD3d 1411 [3d Dept 2017]; Knight v State of New York, 127 AD3d 1435, 1435 [3d Dept 2015], appeal dismissed 25 NY3d 1212 ). As a rule, therefore, expert medical proof is necessary to establish the apparent merit of a claim for medical malpractice (see Matter of Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002]).
Whether Defendant's responses to Movant's subjective complaints of pain for a period of approximately twelve hours deviated from the standard of care and whether there was an exacerbation of the initial injury during the assisted walk to the infirmary are not matters that can be determined without an affidavit of a medical expert. Movant has not provided an affidavit of a treating physician or a medical expert in support of his allegations that he received inadequate medical care nor has he submitted any medical records that would support his claim that he received negligent medical treatment (see Barnes v State of New York, 158 AD3d 961, 963 [3d Dept 2018]). Rather, Movant has provided only conclusory assertions that the twelve hour wait and the walk to the infirmary exacerbated the original basketball injury (see e.g. Stapleton v State of New York, UID No. 2019-028-524 [Ct Cl, Sise, P.J., May, 16, 2019] ["Only the unsupported assertions of the claimant have been submitted in support of any claim of inadequate medical care"]).
"The Court of Claims is vested with broad discretion to grant or deny a motion for permission to file a late claim following the consideration of the statutory factors enumerated in Court of Claims Act Section 10 (6)" (Robinson v State of New York, 35 AD3d 948, 949-950 [3d Dept 2006], citing Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). Even where the majority of facts enumerated in section 10 (6) "are in favor of a claimant, permission to file a late claim may be denied where it would be futile to permit the filing of a legally deficient claim which would be subject to immediate dismissal" (Prusack v State of New York, 117 AD2d at 729). Here, Movant did not present a claim which "appears to be meritorious" for purposes of section 10 (6).
The Court has weighed each of the six statutory factors and examined the entire record before it and finds that the underlying claim is legally deficient and of questionable merit, and there is no reasonable cause to believe that a valid claim exists. On this basis, and in the absence of any other factor which would warrant a different result, movant's motion must be denied (see e.g. White v State of New York, 161 Misc 2d 938, 943-944 [Ct Cl 1994]).
Accordingly, movant's motion M-94252 is denied.
August 26, 2019
Central Islip, New York
MAUREEN T. LICCIONE
Judge of the Court of Claims
The following papers were read and considered by the Court on this motion:
1. Notice of motion filed June 5, 2019; Affidavit of Michael Dye sworn to May 30, 2019, and attached exhibits.
2. Affirmation in Opposition of Dorothy M. Keogh, AAG, dated July 10, 2019.
3. Movant's Reply dated August 2, 2019.
August 26, 2019
Central Islip, New York
MAUREEN T. LICCIONE
Judge of the Court of Claims