New York State Court of Claims

New York State Court of Claims
PHILLIPS v. THE STATE OF NEW YORK, et al., # 2021-038-562, Claim No. 129631, Motion No. M-97127


Motion to amend medical malpractice claim denied. No reasonable excuse for delay in seeking to amend claim, and claimant failed to proffer competent medical proof in support of proposed amended claim.

Case information

UID: 2021-038-562
Claimant(s): OTIS PHILLIPS
Claimant short name: PHILLIPS
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK, et al.
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 129631
Motion number(s): M-97127
Cross-motion number(s):
Claimant's attorney: IAN KAUFMAN, LLC
By: Ian H. Kaufman, Esq.
Defendant's attorney: LETITIA JAMES, Attorney General
of the State of New York
By: Belinda A. Wagner, Assistant Attorney General
Third-party defendant's attorney:
Signature date: November 18, 2021
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, an individual formerly incarcerated in a State correctional facility, filed this claim alleging medical malpractice and medical negligence by defendant's agents and employees at Franklin Correctional Facility (CF) beginning in February 2015.(1) Claimant now seeks permission to amend the claim. Defendant opposes the motion.

The CPLR permits a party to "amend . . . or supplement [a pleading] by setting forth additional or subsequent transactions or occurrences, at any time by leave of court" (CPLR 3025 [b]). Leave to amend a claim "should be freely given unless the proposed amendments plainly lack merit or would cause the nonmoving party to suffer prejudice or unfair surprise" (Bastian v State of New York, 8 AD3d 764, 765 [3d Dept 2004]; see Matter of Miller v Goord, 1 AD3d 647, 648 [3d Dept 2003]; Acker v Garson, 306 AD2d 609, 610 [3d Dept 2003]), and whether to grant or deny such a motion is a matter within the discretion of the Court (see Swergold v Cuomo, 70 AD3d 1290 [3d Dept 2010]; Thibeault v Palma, 266 AD2d 616, 617 [3d Dept 1999]). "In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated, whether a reasonable excuse for the delay was offered, and whether prejudice resulted therefrom" (Cohen v Ho, 38 AD3d 706, 706 [2d Dept 2007]). It is claimant's burden, as the proponent of the motion, "to make an evidentiary showing sufficient to support the proposed claim" (Bast Hatfield, Inc. v Schalmont Cent. School Dist., 37 AD3d 987 [3d Dept 2007]).

The claim alleges that from February 18, 2015, through the date claimant drafted the instant claim, March 3, 2017, defendant's agents and employees at Franklin CF failed to properly treat claimant's prostate condition, despite claimant's "continuous pleas and complaints (oral and written); visits to sick-call and doctor appointments seeking desperately needed medical treatment and assistance" (Claim No. 129631, 13; see id. at 16). The claim alleges that claimant was in constant and excruciating pain as a result of his condition, which limited his mobility, caused him difficulties using the bathroom, affected his sleep, and caused the build-up of fluid in and around his genitals (see id. at 14-15). The claim alleges that defendant's agents and employees failed to take any action to treat claimant's prostate condition other than prescribing him "some over the counter pain medication," which the claim alleges did not alleviate the continuous and excruciating pain he was experiencing (id. at 15). The claim alleges that a specialist at Upstate CF diagnosed claimant with an enlarged prostate on December 15, 2016, and informed claimant that the condition was "remediable, and should have been [addressed] a long time ago, but because of the duration of [the] condition, [claimant] may never be able to Father children naturally ever again" (id.). The claim further alleges that despite the December 15, 2016 diagnosis, defendant's agents and employees at Franklin CF failed to do anything to treat claimant's condition, which they had initially misdiagnosed (see id. at 16-17). The claim alleges causes of action sounding in medical malpractice and medical negligence and seeks $5 million in damages (see id. at 18-22).

Appended to claimant's motion is a "Proposed Amended Claim," which alleges causes of action sounding in "negligence, malpractice and statutory violations committed by [defendant's agents and employees at] Franklin [CF] while claimant . . . was incarcerated beginning on or about February 15, 2015 and continuing until his transfer to Fishkill [CF] in or about 2019" (Kaufman Affirmation, Exhibit B [Proposed Amended Claim, 2]). The proposed claim alleges that during his incarceration at Franklin CF, claimant experienced "tremendous bouts of groin and lower back pain" and made "numerous complaints about his physical condition to staff, medics, physicians and specialists" (id.). The proposed claim further alleges that claimant "would invariably complain[] of groin and lower back pain together as if the conditions were being experienced contemporaneously," and that defendant's agents and employees at Franklin CF "invariably sent [claimant] to a urologist as opposed to a specialist who would be in a position to discover the root of his lower back pain" or, in the alternative, "did not send claimant to one physician or specialist who would comprehensively examine all of claimant's injuries and complaints" (id.). The proposed claim alleges that, as a result, defendant's agents and employees at Franklin CF failed "to timely diagnose a lower back herniation which was discovered" by a urology specialist at Upstate CF, who was "the first physician associated with any STATE facility" to correctly diagnose claimant's lumbar herniation - which was confirmed by MRI - as the cause of both claimant's lower back pain and prostate pain (id.). The proposed claim alleges a cause of action sounding in medical malpractice against defendant's agents and employees on the ground that they failed to refer claimant to an appropriate physician and failed to follow up with claimant to ensure that he was receiving appropriate care (see id.). The proposed claim alleges that the acts of medical malpractice occurred at Franklin CF for approximately four years beginning on February 18, 2015, and that as a result of the alleged malpractice, claimant experienced "years of pain and suffering" (id. at 5).

In support of the motion to amend the claim, claimant's counsel asserts that claimant was "self-represented without the assistance [of] counsel from the approximate date of the inception of the claim period, February 18, 2015 up to late 2019," and that during the four years that claimant was self-represented, defendant "sat on this case and undertook no activity with respect to moving the case towards resolution," and "apparently . . . discovered [the claim] in late 2020 with an Answer and discovery demands first being filed on or about January 5, 2021" (Kaufman Affirmation, 4A).(2) Claimant argues that defendant's agents and employees at Franklin CF initially and erroneously attributed the pain in his groin area to a prostate condition, and that claimant was later diagnosed with a lumbar herniation by a specialist at Upstate CF, who confirmed the condition through an MRI (see Kaufman Affirmation, 5-6). Claimant's counsel argues that claimant "now seeks to amend his claim to reflect the nature of the wrongdoing[]" in continually referring claimant to a urologist rather than an orthopedist despite his complaints of back pain, and that an orthopedist would have diagnosed and treated claimant's lumbar herniation sooner (id. at 7).

Claimant argues that defendant would suffer no prejudice should the motion to amend be granted because no discovery has yet been exchanged. (see id. at 15).(3) Claimant further argues that the State is solely responsible for the five-year delay in litigating this claim, thereby denying claimant the "opportunity to correct his claim" and "to adequately address the specifics" of the claim (id. at 16). Claimant's counsel argues that as a pro se litigant, claimant could not have been expected to realize that he would be required to amend his claim once he learned that the cause of his pain was not a prostate condition but a lumbar spine herniation, and that in consideration of claimant's former pro se status and the five-year delay that he attributes solely to the State, the Court should grant the motion to amend the claim so that claimant may "obtain[] a fair day in Court litigating the claim he meant to pursue all along" (id. at 18; see id. at 17). Claimant asks that the Court consider any argument by the State that it would suffer prejudice or unfair surprise should leave to amend the claim be granted to be "feigned and disingenuous" in light of "the STATE's failure to move its case along for over five years" (id. at 17-18).

In opposition to the motion, defendant argues that "the State did not 'sit' on this matter," but rather made "repeated attempts . . . to obtain discovery responses" and "consulted with a urologist regarding the care and treatment provided to" claimant (Wagner Affirmation in Opposition, 6-7). Defendant argues that the claim has not yet been resolved because while claimant was prosecuting this claim pro se during his incarceration, the parties were awaiting a trial date from the Court, and because claimant's counsel was unaware of this claim for a period of time after claimant's release from incarceration (see id. at 6). Defendant further argues that the proposed claim is unsupported by a factual affidavit by an individual with personal knowledge, that the affirmation of claimant's counsel "is plainly deficient and is hearsay," and that the proposed amended claim is also unaccompanied by any medical evidence to support the allegations contained therein (id. at 9; see id. at 8). Defendant also argues that claimant has not submitted a certificate of merit with the proposed amended claim as required under CPLR 3012-a, and that the Court thus cannot "determine if the amendment is palpably improper or deficient without even a bare showing that this is in fact a viable claim" (id. at 10).(4) Defendant argues that it would be prejudiced if claimant were permitted to file the proposed amended claim because the "medical providers have retired and they would be needed to discuss this new theory," and because claimant "failed to do anything regarding this claim" when he was released to parole on August 24, 2020, and apparently " 'forgot' that he had filed the claim and thought it was 'lost in the system' " until defendant's request for discovery responses revealed that this claim was still pending (id. at 10A).

In reply, claimant's counsel argues that claimant should "be permitted to amend his claim based on the passing of time and . . . changed circumstances" (Kaufman Reply, 4), particularly because the facts as alleged in the original claim have changed based upon the new information regarding the true nature of claimant's injury, and thus "claimant could not even argue the merits of the initial . . . claim in good faith" (id. at 6). Claimant's counsel further argues that defendant has not been prejudiced by the passage of time because it is still capable of contacting the medical providers involved in this claim despite their retirement from State employment, and because defendant failed to pursue this claim for a period of four years (see id. at 7-8). Claimant's counsel argues that it is claimant who has been prejudiced because he has yet to obtain copies of "his medical records and complete file" from defendant, and that defendant thus cannot argue that the instant motion should be denied based upon claimant's failure to append his medical records to the proposed amended claim in support of the new allegations contained therein (id. at 9). Claimant's counsel has appended to his reply submission a verification to the proposed amended claim sworn to by claimant (see id., Exhibit A) and a CPLR 3012-a certificate of merit (see id., Exhibit B), and argues that the motion to amend should not be denied for failure to append those documents to the proposed amended claim (see id. at 10-13).

As discussed above, the allegations set forth in the initial claim are related solely to an alleged prostate condition, with specific allegations of "excruciating [t]esticular pain," pain with urination and defecation, and fluid and swelling in claimant's genitals (Claim No. 129631, 14; see id. at 15). The initial claim further alleges that claimant was diagnosed with an enlarged prostate by a specialist at Upstate CF on December 15, 2016, and that the medical providers at Franklin CF nevertheless failed to treat that condition, which as of the time of the filing of the claim allegedly continued to cause claimant "intolerable pain" on a daily basis and would prevent him from ever fathering children again (id. at 16; see id. at 15-17). The initial claim is devoid of any allegations that claimant also suffered from lower back pain during the relevant time period, or that he made complaints of back pain to any medical provider at Franklin CF or the specialist at Upstate CF who diagnosed him with an enlarged prostate. In the proposed amended claim, claimant now seeks to change his theory of the case by alleging, as discussed above, that he complained of both groin and lower back pain to medical providers at Franklin CF, who misdiagnosed claimant's condition and referred him to a urologist rather than to an appropriate specialist who could have diagnosed his lumbar spine herniation, which was later discovered by a specialist at Upstate CF.

Where there has been a "substantial delay" in seeking leave to amend a pleading - as there is in this case - the application "should be supported by a rational excuse" (A.B.C. Carpet Co. v Jason Minick, Inc., 45 AD2d 566, 568 [3d Dept 1974]). Here, claimant's counsel argues that as a pro se litigant, claimant was unaware that he would be required to move for leave to amend the claim once the new facts - namely, the alleged diagnosis of the lumbar herniation - came to light, and seeks to attribute the four-year delay between the filing of the claim and the instant motion to inaction by the State.

To the extent claimant's counsel argues that claimant should not be penalized for his failure to promptly move to amend the claim due to his status as a self-represented litigant, it is well settled that "courts will routinely afford pro se litigants some latitude" (Duffen v State of New York, 245 AD2d 653, 653 [3d Dept 1997], lv denied 91 NY2d 810 [1998]). Nevertheless, "a pro se litigant acquires no greater right than any other litigant" (id. at 654 [internal quotation marks omitted]), and a litigant's pro se status is not a valid excuse for the failure to comply with applicable rules and regulations, case law, and court orders (see e.g. U.S. Bank N.A. v Crawford, 174 AD3d 762, 763 [2d Dept 2019] ["a pro se defendant's lack of understanding about the legal process" was not "sufficient to constitute a reasonable excuse" for his default]; Stein v Davidow, Davidow, Siegel & Stern, LLP, 157 AD3d 741, 742 [2d Dept 2018] [neither plaintiff's status as a pro se litigant "nor his claims that he was unaware of the consequences of failing to appear constitute(d) a reasonable excuse" for his failure to appear at a court conference]; Matter of Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006] [pro se claimant's "professed ignorance of the law" was not "an acceptable excuse" for failing to timely file a claim in the Court of Claims]; Matter of Bates v Coughlin, 145 AD2d 854, 855 [3d Dept 1988], lv denied 74 NY2d 602 [1989] ["petitioner's status as a pro se litigant . . . does not excuse him from the obligation to make known his objections during the course of the administrative process"]; Yule v Comerford, 140 AD2d 981, 982 [4th Dept 1988] ["We know of no rule of law which would excuse a pro se litigant from compliance with procedural or other rules designed for the orderly conduct of an action"]).

Moreover, the Court is equally unpersuaded by claimant's argument that the State is solely responsible for the delay in litigating this claim. Contrary to claimant's argument, he is responsible for prosecuting his claim, and if he was dissatisfied with the pace of litigation, he could have availed himself of any number of devices to advance his claim. Indeed, if claimant's argument is to be accepted, a pro se litigant would be relieved of any responsibility to prosecute a claim once it has been filed when in fact, the opposite is true, and it is claimant's responsibility to actively litigate his claim. Regardless of the extent of defendant's inaction, claimant cannot initiate a claim, take no further action to move the claim forward, and then seek to shift the entirety of the blame for the delay to defendant. Claimant has made no effort during the four and a half years since this claim was filed to move to amend the claim or to compel the production of the medical records that would have allowed him to do so in a more timely manner. In the Court's view, therefore, claimant has failed to proffer a reasonable excuse for the lengthy delay in moving to amend the claim.

However, it is well settled that "delay alone is insufficient to deny a motion to amend, [but] when unexcused lateness is coupled with prejudice to the opposing party, denial of the motion is justified" (Clark v MGM Textiles Indus., Inc., 18 AD3d 1006, 1006 [3d Dept 2005]). "It is incumbent upon one seeking leave to amend a pleading to make an evidentiary showing that the claim can be supported" (Sober v Kalina, 208 AD2d 1140, 1140 [3d Dept 1994]). Where a claim alleges personal injury due to medical malpractice, leave to amend the claim cannot be granted in the absence of competent medical evidence, in the form of medical records or an affidavit of a medical expert, demonstrating the causal connection between claimant's injuries and the alleged malpractice (see Pagan v Quinn, 51 AD3d 1299, 1301 [3d Dept 2008]).

Here, although claimant in his reply has belatedly submitted a certificate of merit as required by CPLR 3012-a, the obligation to do so "is not an evidentiary one as to the ultimate merits of an action" but rather "an ethical one" that "place[s] an initial responsibility upon attorneys for [claimants] to undertake efforts assuring the factual and legal validity of the [claims], prior to the filing of initiatory papers with the court" (Wilmington Savings Fund Society, FSC v Matamoro, - AD3d -, 2021 Slip Op 05741, *4 [2d Dept 2021]). Accordingly, a certificate of merit "does not itself demonstrate the meritoriousness of a medical malpractice claim, but merely ensures that counsel has satisfied himself [or herself] that there is a reasonable basis for the commencement of [an] action" (Horn v Boyle, 260 AD2d 76, 77 [3d Dept 1999] [internal quotations and citations omitted], lv denied 94 NY2d 762 [2000]) and "is insufficient to demonstrate a meritorious claim" (Sober, 208 AD2d at 1141; see Ault v Richman, 299 AD2d 613, 615 [3d Dept 2002]). Further, although the motion is supported by a verified amended claim, it is not supported with an affidavit of merit from a medical expert, relevant medical records or other competent proof to allow the Court to make a determination as to whether the allegations in the proposed amended claim "plainly lack merit" (Bastian, 8 AD3d at 765). Accordingly, in the absence of competent medical proof supporting the amendment, claimant will not be permitted to amend his claim (see Sober, 208 AD2d at 1145 [affirming denial of plaintiff's motion to amend a complaint to include a medical malpractice cause of action on the ground that plaintiff failed to supply a supporting affidavit of merit]; see also Torchia v Garvey, 118 AD3d 426, 427 [1st Dept 2014] [motion to amend medical malpractice claim should be denied where plaintiff failed to offer an expert medical affidavit in support of the proposed claim]; [Hardman v Long Is. Urological Assoc., 253 AD2d 849, 850 [2d Dept 1998] [cross motion for leave to amend bill of particulars properly denied where "the plaintiff submitted no evidentiary support for his claims regarding the decedent's medical condition"]; cf. Marpe v Dolmetsch, 246 AD2d 723, 724 [3d Dept 1998] [motion to amend properly granted where supported by affidavit of merit from a medical expert]; Simmons v Austin, 163 AD2d 720, 720 [3d Dept 1990] [trial court "did not abuse its discretion in permitting plaintiff to amend her complaint" where "(t)he motion to amend the complaint was supported by competent medical evidence of a change in plaintiff's condition, including lumbar surgery"]), and claimant's motion will be denied without prejudice to renewal upon proper proof (see Posselt v Rosa, 60 AD2d 854 [2d Dept 1978]).

Accordingly, it is

ORDERED, that claimant's motion number M-97127 is hereby DENIED without prejudice to renewal upon proper proof.

November 18, 2021

Saratoga Springs, New York


Judge of the Court of Claims

Papers considered:

1. Claim No. 129631, filed April 27, 2017;

2. Verified Answer, filed May 5, 2017;

3. Notice of Motion, dated August 30, 2021;

4. Affirmation of Ian Kaufman, Esq., in Support, dated August 30, 2021, with Exhibits A & B;

5. Affirmation of Belinda A. Wagner, AAG, in Opposition, dated September 28, 2021, with Exhibits 1 & 2;

6. Reply of Ian H. Kaufman, Esq., undated, with Exhibits A & B;

7. Notice of Appearance, filed January 4, 2021.

1. Claimant filed and served this claim pro se during his incarceration at Franklin CF. However, claimant has since been released from his incarceration and is now represented by counsel, who filed and served this motion on his behalf.

2. The affirmation of claimant's counsel contains two consecutive paragraphs both enumerated as paragraph 4 (see Kaufman Affirmation, pg. 4). To avoid confusion, the second paragraph 4 is denominated paragraph 4A. The Court would also note that claimant's counsel filed a notice of appearance in early January 2021 (see Notice of Appearance, dated Jan. 4, 2021), and not "late 2019" (Kaufman Affirmation, 4A), and that defendant's answer was filed in May 2017 (see Verified Answer, filed May 5, 2017), not January 2021 (see Kaufman Affirmation, 4A).

3. Claimant's counsel also asserts that discovery was delayed as a result of confusion that occurred when claimant retained him as counsel with respect to an unrelated claim against the State in which claimant alleged that he was assaulted while incarcerated at Fishkill Correctional Facility (see Kaufman Affirmation, 8-9), and that claimant "was shocked" when his counsel informed him that the instant claim was still active because "he was confident it was lost in the system and was incapable of revival" (id. at 8).

4. Defendant's affirmation in opposition contains two consecutive paragraphs both enumerated as paragraph 10 (see Wagner Affirmation in Opposition, pg. 5). To avoid confusion, the second paragraph 10 is denominated paragraph 10A.