Late claim motion denied. Claimant failed to demonstrate a reasonable excuse for the delay in filing the claim or establish the appearance of merit, and conceded he had another remedy available.
|Claimant short name:||DiVALENTINO|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||ANTHONY DiVALENTINO, Pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Heather R. Rubinstein, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 4, 2020|
|See also (multicaptioned case)|
Claimant, an individual currently incarcerated in a State correctional facility, moves for permission to file and serve a late claim pursuant to Court of Claims Act § 10 (6). The proposed claim alleges a single cause of action sounding in medical malpractice by defendant's agents at Green Haven Correctional Facility (CF) beginning in June 2019. Defendant opposes the motion.
The proposed claim alleges that on June 5, 2019, claimant was in his cell at Green Haven CF when he experienced numbness on the right side of his body, which subsided by the time medical staff responded to his cell 25 minutes later (see Proposed Claim, ¶ 5). The proposed claim alleges that claimant was transported to the facility's medical unit, where he underwent "numerous x-rays of [his] back," was told that the "x-rays should be read in about 10 days," and was returned to his cell (id. at ¶ 6). The proposed claim alleges that claimant "put in a note to [his] health care provider, Dr. Silver," regarding the incident (id. at ¶ 7). The proposed claim further alleges that claimant experienced another episode of complete numbness on the right side of his body in the mess hall on June 13, 2019, that he was again transported to the facility medical unit, and that he was instructed to remain on bed rest and return to the medical unit the next day (see id. at ¶ 8). The proposed claim alleges that when claimant arrived at the medical unit the next day, June 14, 2019, medical staff "did not know why [he] was there" (id. at ¶ 9). The proposed claim alleges that medical staff examined claimant's right shoulder and found nothing wrong, and that when claimant informed them that x-rays had been taken of his back, they replied "that [an] x-ray would not show anything . . . [and] that [he] needed an M.R.I. instead, but would need to be seen by Orthopedics first" (id.). The proposed claim further alleges that claimant met with Dr. Silver on June 18, 2019, but Dr. Silver "took no action to diagnose [claimant's] condition" (id. at ¶ 10). The proposed claim alleges that claimant underwent an electrocardiogram at the facility's medical unit on June 18, 2019 and had blood drawn on July 1, 2019 (see id. at ¶¶ 11-12). The proposed claim alleges that on July 7, 2019, claimant again experienced complete numbness on the right side of his body and collapsed, and he was transported to Vassar Brothers Hospital, where testing of his brain revealed that he had suffered "numerous prior strokes" (id. at ¶ 13). The proposed claim alleges that claimant was released from the hospital on July 10, 2019 with prescriptions for several medications (see id. at ¶ 14), and that since his hospitalization, he has experienced no further "strokes or bouts of numbness" but "still suffer[s] from tremors and weakness in [his] right hand" (id. at ¶ 26).
The proposed claim alleges that during a July 25, 2019 appointment, claimant told Dr. Silver that he had been diagnosed with "numerous prior strokes," and Dr. Silver asked " 'How do we know when you had those strokes?' " (id. at ¶ 15). The proposed claim further alleges that claimant was transported to Fishkill CF in August and December 2019 to see a cardiologist, who recommended that claimant have a heart monitor placed in his chest, and that the procedure was performed at Westchester Medical Center in January 2020 (see id. at ¶¶ 17-22). The proposed claim further alleges that on February 4, 2020, Dr. Silver increased the dosage of claimant's blood pressure medication but failed to prescribe an antibiotic that claimant required (see id. at ¶ 23). The proposed claim alleges that claimant was transported to Westchester Medical Center on February 14, 2020 for a scan of his heart monitor, and that claimant was prescribed a one-week supply of an antibiotic, which he received at Green Haven CF (see id. at ¶ 25).
The proposed claim alleges a single cause of action for "Medical Malpractice/Negligence" (id., First Cause of Action), in which claimant alleges that medical staff at Green Haven CF failed to provide him with "timely and adequate medical care" when claimant alerted them to the multiple episodes of numbness on his right side, which "resulted in . . . claimant suffering numerous strokes unnecessarily over an extended period of time" (id. at ¶ 28). The proposed claim alleges that as a result of defendant's employees failing to treat claimant properly despite having knowledge that his symptoms were indicative of a stroke, claimant has suffered permanent physical injuries (see id. at ¶¶ 29-35). The proposed claim alleges that it accrued on July 7, 2019, the date upon which claimant was hospitalized at Vassar Brothers Hospital "and was informed that he had multiple strokes, at which point he started to receive proper treatment and care" (id., ¶ 36).(1) The proposed claim seeks $1 million in damages (see id. at ¶¶ 39-41).
In deciding a motion for late claim relief, the Court is required to consider the following factors:
"whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy"
(Court of Claims Act § 10 ). The presence or absence of any particular factor is not controlling (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 ), and the weight accorded the various factors is a matter within the discretion of the Court.
In support of his late claim motion, claimant argues that the delay in filing this claim is excusable because he "is not a lawyer and had no access to legal counsel," and because he "had limited access to [the] law library, research materials and supplies . . . and was only recently able to gain the assistance of a 'jailhouse lawyer' that was willing, able and capable of assisting him in preparing this claim" (DiValentino Affidavit, ¶ 2). Defendant has not addressed this factor in its opposition to the instant motion. However, it is well settled that "neither claimant's professed ignorance of the law nor his confinement in a correctional facility provided an acceptable excuse" for failing to timely file a claim in the Court of Claims (Matter of Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006]; see Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002], lv dismissed 99 NY2d 589 ; Matter of Powell v State of New York, 187 AD2d 848, 849 [3d Dept 1992]), and, likewise, that a "[c]laimant's asserted inability to secure an attorney is no basis for delay in filing" (Simpson v State of New York, 96 AD2d 646, 646 [3d Dept 1983]). Accordingly, this factor weighs against granting claimant's application for late claim relief.
The next three factors - whether the State had notice of the essential facts constituting the claim and an opportunity to investigate the circumstances underlying the claim, and whether claimant's failure to file or serve upon the attorney general a timely claim or notice of intention resulted in substantial prejudice to the State - are closely related, and may be considered together (see Conroy v State of New York, 192 Misc 2d 71, 72 [Ct Cl 2002]; Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). In support of his late claim motion, claimant asserts that "[t]he [S]tate had notice of the essential facts constituting this claim" because he "repeatedly went to the [Green Haven CF medical] clinic complaining of numbness in the right side of [his] body, which provided them with ample and adequate time to disseminate the essential facts" (DiValentino Affidavit, ¶ 3). Claimant further argues that because the State possessed an "abundance of essential facts" regarding this claim and there was "minimal delay" in filing this motion after the time within which to file and serve the claim had expired, defendant would not suffer "substantial prejudice" if claimant were permitted to late file this claim (id. at ¶ 5). Defendant has not addressed these three factors in its opposition to the instant motion, and thus they weigh in favor of granting the late claim application.
Turning next to the appearance of merit of the proposed claim, this factor is often decisive because, although Court of Claims Act § 10 (6) reflects a legislative determination that "litigants with meritorious claims [should] be afforded their day in court" (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]; see Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]), the courts have recognized that a late claim application should not be granted where a claim is "legally deficient . . . [and] would be subject to immediate dismissal, even if the other factors tend to favor the granting of the request" (Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [Ct Cl 1977]). In general, a party seeking to establish the merit of a proposed late claim need not demonstrate a likelihood that he or she will prevail on the claim. Rather, a proposed claim has the appearance of merit within the meaning of Court of Claims Act § 10 (6) if: (1) the proposed claim is not "patently groundless, frivolous, or legally defective," and (2) all of the evidence submitted on the motion establishes "reasonable cause to believe that a valid cause of action exists" (Matter of Santana, 92 Misc 2d at 11).
It is well settled that "the State owes a duty to provide medical care and treatment to its prisoners" (Kagan v State of New York, 221 AD2d 7, 16 [2d Dept 1996]). In the context of a late claim motion, when a proposed claim asserts medical malpractice, the merit of such a claim must be readily apparent from medical records submitted on the motion or supported by an expert affidavit (see Matter of Robinson v State of New York, 35 AD3d 948 [3d Dept 2006]; Matter of Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002]; Rosario v State of New York, 8 Misc 3d 1007[A] [Ct Cl 2005]; Jackson v State of New York, UID No. 2007-029-001 [Ct Cl, Mignano, J., Jan. 10, 2007]), as well as by evidence that defendant "breached the standard for good and acceptable care in the locality where the treatment occurred and that [the] breach was the proximate cause of [the claimed] injury" (Bracci v Hopper, 274 AD2d 865, 867 ). Similarly, in claims alleging medical negligence, expert medical proof is required where medical issues are raised that are "not within the ordinary experience and knowledge of lay persons" (Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 ).
In support of his late claim motion, claimant argues that the proposed claim has the appearance of merit because "the evidence will show that Green Haven [CF] Medical Staff acted with malice by repeatedly failing to provide [him] with timely and adequate medical care after repeated strokes, and placing [his] life in danger" (DiValentino Affidavit, ¶ 4). Claimant further argues that defendant is not entitled to absolute immunity because its "employees fail[ed] to comply with governing statutes, rules regulations and directives, especially when diagnosing patients complaining of numbness on one entire side of their bodies (a well known sign of a stroke or heart attack)" (id.).
In opposition to the motion, defendant argues that the proposed claim lacks the appearance of merit because claimant has failed to submit an expert affidavit "demonstrating that medical personnel employed by Defendant deviated from the appropriate standard of medical care or otherwise failed to utilize their professional judgment in treating him," that evaluating the allegations of medical malpractice in the proposed claim "involves the appropriate level of patient care, and the exercise of professional judgment," and that "the Court cannot accept Claimant's own statement that the level of care afforded him was inadequate as the basis for a" medical malpractice claim (Rubinstein Affirmation, ¶ 5). Defendant further argues that, to the extent the proposed claim can be read to assert a cause of action sounding in medical negligence, it likewise lacks the appearance of merit inasmuch as such a cause of action "alleges negligent omissions or commissions by State caregivers which can be readily determined without the necessity of expert testimony," but that here, "an expert opinion is necessary to demonstrate how Claimant's care was improper" (id. at ¶ 6).
Claimant argues in reply that an expert affidavit is not necessary to establish the merit of the proposed claim because it is common knowledge that numbness on one side of the body is "a well known sign of a stroke, heart attack or other serious health related issue," and that "no medical expert is necessary to understand that [claimant] was subjected to medical malpractice when [defendant's employees] failed to examine him to rule out such an occurrence . . . three times until he finally received treatment" (DiValentino Reply Affidavit, ¶ 4; see id. ¶¶ 6-7). Claimant further argues that requiring an expert affidavit at this stage would require him to prove the merits of the claim rather than the appearance of merit, and that because there has been no discovery of the claim, he has not yet had an opportunity to consult with an expert (see id. at ¶ 5).
As discussed above, in order to demonstrate the appearance of merit, a late claim motion asserting a cause of action sounding in medical malpractice must be supported by either a copy of the claimant's medical records or an expert affidavit. Claimant's late claim application here is unsupported by a copy of his medical records or an expert affidavit, and claimant has failed to demonstrate the appearance of merit of the proposed claim (see Decker v State of New York, 164 AD3d 650, 653 [2d Dept 2018] ["claimants failed to demonstrate a potentially meritorious cause of action based on their allegations of medical malpractice, since they failed to provide an affidavit of merit from a physician"]; Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006] [late claim relief denied where "claimant provided no medical records or expert medical proof to support his allegations of medical malpractice"]). Moreover, to the extent the proposed claim can be construed as sounding in simple medical negligence, such a cause of action alleges a negligent act that "may be readily determined by the trier of the facts based on common knowledge" (Coursen v New York Hosp. - Cornell Med. Ctr., 114 AD2d 254, 256 [1st Dept 1986]; see also Carter v State of New York, 11 Misc 3d 1082[A], 2006 NY Slip Op 50653[U], *3 [Ct Cl 2006]). Here, however, the proposed claim alleges that defendant's employees failed to diagnose and treat the symptoms of a stroke, which, contrary to claimant's assertions, is an issue "not within the ordinary experience and knowledge of lay persons," and it was incumbent upon claimant to provide an expert affidavit establishing proximate cause, which, as previously noted, claimant has not done (Wells, 228 AD2d at 582). In the absence of an expert affidavit or medical records clearly showing the alleged medical negligence, the proposed claim patently lacks the appearance of merit, and this factor weighs decisively against granting the late claim motion.
Lastly, claimant argues that "the only other remedy [he] may have available is a Federal Civil Rights action, but such action would come with substantial burdens including a much higher pleading requirement" (DiValentino Affidavit, ¶ 6). Claimant further argues that he "would find it extremely difficult to pursue such a proceeding and severely prejudice his ability for relief in this matter" (id.). Although defendant does not address this factor, it nevertheless weighs against granting the late claim application inasmuch as claimant has conceded that he has another remedy available. Additionally, claimant may also bring an action against the doctors and medical providers individually (see Sears v State of New York, UID No. 2020-058-019 [Ct Cl, Leahy-Scott, J., Feb. 24, 2020; DeCastro v State of New York, UID No. 2019-050-044 [Ct Cl, Lynch, J., Oct. 2. 2019]; La Gray v State of New York, UID No. 2019-018-038 [Ct Cl, Fitzpatrick, J., July 8, 2019]). Thus, this factor weighs against granting late claim relief.
Having considered and weighed all of the factors set forth in Court of Claims Act § 10 (6), the Court finds that although three of the six statutory factors weigh in support of granting claimant's late claim application, the remaining three factors, including the crucial factor of the appearance of merit, weigh against granting the application.
Accordingly, it is
ORDERED, that claimant's motion number M-95566 is DENIED.
November 4, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Notice of Motion For Permission To File A Late Claim, dated March 20, 2020;
2. Affidavit of Anthony DiValentino in Support of Motion For Permission To File A Late Claim, sworn to March 20, 2020;
3. Proposed Verified Claim, dated March 20, 2020;
4. Affirmation of Heather R. Rubinstein, AAG, in Opposition for Leave to File Late Claim, dated August 21, 2020;
5. Reply Affidavit of Anthony DiValentino in Support of Motion For Permission To File A Late Claim, sworn to September 4, 2020.
1. In his affidavit in support of the instant motion, claimant alleges that "[t]he incident underlying the claim occurred on July 7th, 2019 and August 9th, 2019" (DiValentino Affidavit, ¶ 1). Although the proposed claim alleges ongoing treatment by defendant's employees at Green Haven CF through February 4, 2020 (see Proposed Claim, ¶ 23), claimant has clearly limited the allegations of medical malpractice to the period from June 5, 2019, when he experienced his first bout of right-sided numbness, to July 7, 2019, when he was transported to Westchester Medical Center and diagnosed with multiple strokes.