Renewed motion for permission to serve and file a late claim alleging a cause of action for medical malpractice denied; Movant's allegations of medical malpractice must be supported by an expert affidavit.
Pro se Movant Steven J. Seamans seeks permission to serve and file a late claim for "Medical Malpractice and [D]eliberate Indifference" (Proposed Claim ¶ 3).(1) In particular, Movant alleges he suffered a heart attack on February 21, 2019, while incarcerated at Cayuga County Jail. Movant was transferred first to Auburn Memorial Hospital and then SUNY Upstate Medical University Hospital (Upstate) "for a stint [sic] operation" (see id. ¶ 5). Movant avers that Upstate failed to adequately treat him and, consequently, he suffered six heart attacks between February 23 and February 24, 2019 (see id. ¶ 16). Defendant opposes the motion.
Court of Claims Act § 11 (a) (i) provides that a "claim shall be filed with the clerk of the court; and . . . a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court." "A claimant seeking to recover damages for personal injuries caused by the negligence, intentional tort or unintentional tort of an officer or employee of the State must file and serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see Court of Claims Act § 10 , [3-b]).
The Court has discretion to permit the filing of a late claim pursuant to Court of Claims Act §10 (6) provided that the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. The proposed claim alleges a cause of action for medical malpractice and deliberate indifference. Movant's alleged claim for "deliberate indifference" is premised upon Defendant's failure to treat Movant for his alleged heart conditions and appears to be a separate iteration of a claim for medical malpractice and/or medical negligence (see Jackson v State of New York, UID No. 2019-053-521 [Ct Cl, Sampson, J., June 21, 2019] ["the claim can be read as asserting that (the) defendant was deliberately indifferent to his medical needs and, as such, can be read as alleging either a medical negligence or a medical malpractice cause of action"]). A cause of action for medical malpractice carries a statute of limitations of two years and six months (see CPLR 214-a) and a claim for medical negligence carries a three-year statute of limitations (see CPLR 214; Dixon v State of New York, UID No. 2014-038-556 [Ct Cl, DeBow, J., Dec. 15, 2014]). Because it is undisputed that the proposed claim accrued on February 24, 2019 and the instant application was made on October 27, 2020, the proposed claim is timely.
Upon satisfaction that the proposed claim is timely, the Court will consider six statutory factors set forth in Court of Claims Act § 10 (6) as well as other relevant factors in determining whether to grant the late claim (see Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Although the movant need not satisfy every statutory factor enumerated in Court of Claims Act § 10 (6) (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 ), the ultimate burden rests with the movant to persuade the Court to grant the late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797, 804 [Ct Cl 1977]).
The first factor to be considered is whether the delay in filing the claim was excusable. Movant alleges that his delay in filing the claim is excusable because he "is not a lawyer" and sought to retain an attorney, albeit unsuccessfully (Movant's Aff in Supp of Mot, ¶ 13). However, it is well settled that ignorance of the law is not a sufficient excuse warranting late claim relief (see Matter of Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006]; Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002], lv dismissed 99 NY2d 589 ; Modern Transfer Co. v State of New York, 37 AD2d 756, 756 [4th Dept 1971]).
Moreover, the inability to retain legal counsel prior to the expiration of the 90-day statute of limitations is insufficient to excuse the late filing and service of a claim (see Simpson v State of New York, 96 AD2d 646, 646 [3d Dept 1983] ["(c)laimant's asserted inability to secure an attorney is no basis for delay in filing"]; Francischelli v State of New York, UID No. 2020-038-544 [Ct Cl, DeBow, J., July 10, 2020]).
Additionally, to the extent Movant argues his delay in filing and serving the claim was due to outstanding Freedom of Information Law (FOIL) requests (see Movant's Aff in Supp of Mot ¶¶ 9-10), the Court concludes this is an insufficient excuse for filing a late claim as these FOIL requests were made well after the 90-day statutory period expired (see id. Ex E [indicating FOIL request made on July 17, 2019], Ex G [FOIL request received by Clerk of Cayuga County Legislature on January 23, 2020]; see also Sepe v State of New York, UID No. 2008-036-300 [Ct Cl, Schweitzer, J., Jan. 7, 2008] [outstanding FOIL requests not a reasonable excuse where requests made after the statutory period expired]). Movant fails to offer any reasonable excuse for failure to take any action with respect to his Claim prior to the expiration of the 90-day statutory period. Accordingly, this factor weighs against granting late claim relief. Nevertheless, "the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief" (Bay Terrace Coop. Section IV, 55 NY2d at 981).
The next three factors to be addressed--whether Defendant had notice of the essential facts constituting the Claim, whether Defendant had an opportunity to investigate the circumstances underlying the Claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant--are interrelated and will be considered together (see Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). Neither party has specifically addressed this factor. Although Movant attached some of his medical records to the motion, the fact that Defendant may have possessed Movant's medical records does not, by itself, demonstrate that it had notice of the essential facts constituting the claim and an opportunity to investigate (see Lerner v State of New York, 72 AD3d 406, 407 [1st Dept 2010], lv denied 15 NY3d 703 ; Conroy v State of New York, 192 Misc 2d 71, 72 [Ct Cl 2002]). Consequently, these factors militate against granting the motion.
The fifth factor to be considered is whether Movant has another remedy available. Movant argues, and Defendant does not dispute, that Movant does not have an alternative remedy. However, the Court notes that Movant can pursue an action in Supreme Court against the individual medical providers he claims were negligent and/or committed medical malpractice in treating him (see Lall v State of New York, UID No. 2020-038-549 [Ct Cl, DeBow, J., Aug. 19, 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]). Consequently, this factor weighs in Defendant's favor.
The last and perhaps most important factor to be considered is whether the proposed claim has the appearance of merit, for "it would be futile to permit a defective claim to be filed even if the other factors in Court of Claims Act § 10 (6) supported the granting of the [movant's] motion" (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], affd sub nom. Donald v State of New York, 17 NY3d 389  [internal quotation marks and citation omitted]). It is the movant's burden to show that the claim is not patently groundless, frivolous or legally defective and, based upon the entire record, there is reasonable cause to believe that a valid cause of action exists (see Sands v State of New York, 49 AD3d 444, 444 [1st Dept 2008]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). Although this standard places a heavier burden upon a party who has filed late, it does not require the movant to definitively establish the merit of the claim or to overcome all legal objections before the Court will permit the filing of a late claim (see Matter of Santana, 92 Misc 2d at 11-12).
In order to maintain an action for injuries sustained while under the care and control of a medical practitioner and/or medical facility, "a party may proceed upon a theory of simple negligence, or upon the more particularized theory of medical malpractice" (Hale v State of New York, 53 AD2d 1025, 1025 [4th Dept 1976], lv denied 40 NY2d 804 ). "The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of the common everyday experience" (Miller v Albany Med. Ctr. Hosp., 95 AD2d 977, 978 [3d Dept 1983]; see Twitchell v MacKay, 78 AD2d 125, 127 [4th Dept 1980]). Stated differently, "[w]hen the duty owing to the plaintiff by the defendant arises from the physician-patient relationship or is substantially related to medical treatment, the breach thereof gives rise to an action sounding in medical malpractice as opposed to simple negligence" (Fox v White Plains Med. Ctr., 125 AD2d 538, 538 [2d Dept 1986]).
"Under both theories, however, [the] claimant must establish that the negligence of the State or the State's deviation from the accepted standard of care was the proximate cause of the claimant's injuries" (Lowe v State of New York, 35 AD3d 1281, 1282 [4th Dept 2006]; see Knight v State of New York, 127 AD3d 1435, 1435 [3d Dept 2015], appeal dismissed 25 NY3d 1212 ). Moreover, regardless of "[w]hether 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 opinion is a required element of a prima facie case'"(Tatta v State of New York, 19 AD3d 817, 818 [3d Dept 2005], lv denied 5 NY3d 712 , quoting Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 ; see Trottie v State of New York, 39 AD3d 1094, 1095 [3d Dept 2007]). "General allegations of medical malpractice [which are] merely conclusory and unsupported by competent evidence tending to establish the essential elements of [the cause of action], are insufficient" to state a prima facie case (Alvarez v Prospect Hosp., 68 NY2d 320, 325 ).
Here, the proposed claim alleges a cause of action for medical malpractice based upon Defendant's alleged failure to treat Movant's heart condition at Upstate (see e.g. Serrano v State of New York, UID No. 2017-032-001 [Ct Cl, Hard, J., Feb. 27, 2017] [allegation that the defendant failed to diagnose and treat the claimant's heart attack sounds in medical malpractice]). Consequently, to establish the merit of this claim, Movant was required to submit expert proof demonstrating Defendant deviated from accepted medical practices in treating him (see Matter of Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002]).
Although Movant has submitted copies of some of his medical records, it is not readily apparent, without an affidavit from a medical expert, that Defendant's treatment of Movant fell below the standard of care (see Decker v State of New York, 164 AD3d 650, 653 [2d Dept 2018]; Matter of Barnes v State of New York, 158 AD3d 961, 963 [3d Dept 2018]). Consequently, the Court concludes the proposed claim, as presented, lacks the appearance of merit.
Therefore, upon balancing all factors in the Court of Claims Act section 10 (6), it is hereby:
ORDERED Motion No. M-96055 seeking permission to serve and file a late Claim is denied in its entirety.
December 3, 2020
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims
The Court has considered the following in deciding this motion:
(1) Notice of Motion, filed October 27, 2020.
(2) Affidavit of Steven J. Seamans, in Support of Motion for Permission to File a Late Claim, sworn to on October 13, 2020, with exhibits.
(3) Proposed Claim, dated October 13, 2020.
(5) Movant's Letter, dated November 21, 2020, with attachments.
(6) Affirmation of Ray A. Kyles, Esq., Assistant Attorney General, in Opposition to Claimant's [sic] Motion to File Late Claim, dated November 24, 2020, with exhibit.
(7) Movant's Letter, dated November 30, 2020.
1 Movant previously sought leave to serve and file a late claim asserting the same allegations advanced in the instant motion (see Motion No. M-95608). By Decision and Order dated September 17, 2020 and entered September 21, 2020, this Court denied Movant's motion without prejudice with leave to renew upon proper service of all motion papers, including the proposed claim, on the Attorney General's Office (see Seamans v State of New York, UID No. 2020-058-040 [Ct Cl, Leahy-Scott, J., Sept. 17, 2020]). Defendant does not contest that it was served with the instant motion (seeAffirmation of Ray A. Kyles, Esq., Assistant Attorney General, in Opposition to Motion to File a Late Claim, ¶ 2 & Ex A).
|Claimant(s):||STEVEN J. SEAMANS|
|Claimant short name:||SEAMANS|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CATHERINE E. LEAHY-SCOTT|
|Claimant's attorney:||Steven J. Seamans, Pro Se|
|Defendant's attorney:||Hon. Letitia James, New York State Attorney General
By: Ray A. Kyles, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 3, 2020|
|See also (multicaptioned case)|