Opinion
# 2013-041-072 Motion No. M-83946 Motion No. M-84135
12-02-2013
WILLIS WHITE v. THE STATE OF NEW YORK
Claimant's attorney: WILLIS WHITE Pro Se Defendant's attorney: HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Douglas R. Kemp, Esq. Assistant Attorney General
Synopsis
Applications to file late claim alleging inadequate medical care are denied where claimant fails to offer adequate excuse for delay or to show appearance of merit to proposed claim.
Case information
+-----------------------------------------------------------------------------+ ¦UID: ¦2013-041-072 ¦ +----------------------------+------------------------------------------------¦ ¦Claimant(s): ¦WILLIS WHITE ¦ +----------------------------+------------------------------------------------¦ ¦Claimant short name: ¦WHITE ¦ +----------------------------+------------------------------------------------¦ ¦Footnote (claimant name) : ¦ ¦ +----------------------------+------------------------------------------------¦ ¦Defendant(s): ¦THE STATE OF NEW YORK ¦ +----------------------------+------------------------------------------------¦ ¦Footnote (defendant name) : ¦The caption is amended to state the only proper ¦ ¦ ¦defendant. ¦ +----------------------------+------------------------------------------------¦ ¦Third-party claimant(s): ¦ ¦ +----------------------------+------------------------------------------------¦ ¦Third-party defendant(s): ¦ ¦ +----------------------------+------------------------------------------------¦ ¦Claim number(s): ¦NONE ¦ +----------------------------+------------------------------------------------¦ ¦Motion number(s): ¦M-83946, M-84135 ¦ +----------------------------+------------------------------------------------¦ ¦Cross-motion number(s): ¦ ¦ +----------------------------+------------------------------------------------¦ ¦Judge: ¦FRANK P. MILANO ¦ +----------------------------+------------------------------------------------¦ ¦ ¦WILLIS WHITE ¦ ¦Claimant's attorney: ¦ ¦ ¦ ¦Pro Se ¦ +----------------------------+------------------------------------------------¦ ¦ ¦HON. ERIC T. SCHNEIDERMAN ¦ ¦ ¦ ¦ ¦ ¦New York State Attorney General ¦ ¦Defendant's attorney: ¦ ¦ ¦ ¦By: Douglas R. Kemp, Esq. ¦ ¦ ¦ ¦ ¦ ¦Assistant Attorney General ¦ +----------------------------+------------------------------------------------¦ ¦Third-party defendant's ¦ ¦ ¦attorney: ¦ ¦ +----------------------------+------------------------------------------------¦ ¦Signature date: ¦December 2, 2013 ¦ +----------------------------+------------------------------------------------¦ ¦City: ¦Albany ¦ +----------------------------+------------------------------------------------¦ ¦Comments: ¦ ¦ +----------------------------+------------------------------------------------¦ ¦Official citation: ¦ ¦ +----------------------------+------------------------------------------------¦ ¦Appellate results: ¦ ¦ +----------------------------+------------------------------------------------¦ ¦See also (multicaptioned ¦ ¦ ¦case) ¦ ¦ +-----------------------------------------------------------------------------+ Decision
The inmate/claimant moves twice for permission to file a late claim pursuant to Court of Claims Act § 10 (6). Defendant opposes the motions.
The motions are denied.
The proposed verified notice of intention to file a claim, together with the unverified proposed claim and exhibits, essentially alleges that claimant was not provided adequate medical care by a physician at Clinton Correctional Facility on or about April 30, 2013.
Court of Claims Act § 10 (6) provides that the Court, upon application and in its discretion, may permit the late filing and service of a claim "at any time 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."
In determining the application, Court of Claims Act § 10 (6) provides that:
"[T]he court shall consider, among other 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."
In reviewing a late claim application, "the Court of Claims is required to consider, among other factors, those enumerated in Court of Claims Act § 10 (6), no one factor being controlling" (Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]; see Matter of Duffy v State of New York, 264 AD2d 911, 912 [3d Dept 1999]). In fact, "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981 [1982]).
Further, "it is well settled that the Court of Claims' broad discretion in this area should be disturbed only in the face of clear abuse" (Calco v State of New York, 165 AD2d 117, 119 [3d Dept 1991], appeal denied 78 NY2d 852 [1991]).
Claimant offers no excuse for failing to timely file and serve a claim.
Claimant has failed to adequately show that defendant had notice of the essential facts and an opportunity to investigate the claim, prejudicing defendant's ability to defend the proposed claim.
Section 10 (6) requires that the proposed claim not be "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" (Rizzo v State of New York, 2 Misc 3d 829, 834 [Ct Cl 2003]; see Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl 2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]).
Claimant has provided neither specific probative medical records nor affidavits of medical experts in support of his claim of medical neglect and/or malpractice.
The documents provided by claimant do not demonstrate "that the treatment rendered was medically inappropriate or harmful . . . [n]one of these elements is established by claimant's medical records. Thus, expert medical evidence clearly is required to demonstrate that the diagnosis and treatment rendered to claimant by state personnel departed from accepted medical practices and standards" (Matter of Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002]).
In Matter of Robinson v State of New York (35 AD3d 948 [3d Dept 2006]), claimant alleged in a late claim application that, among other things, a surgical procedure performed by defendant had caused claimant to suffer a skin rash. The Robinson court stated that, "claimant provided no medical records or expert medical proof to support his allegations of medical malpractice . . . [w]e, therefore, find no abuse of discretion in the denial of claimant's application to file a late notice of claim with respect to the January 2005 surgical procedure" (Robinson, 35 AD3d at 950).
Here, as in Perez (293 AD2d at 919), "the excuse offered for the delay is inadequate and the proposed claim is of questionable merit."
Balancing the factors set forth in Court of Claims Act § 10 (6), and in particular recognizing that the claim is of dubious, if any, merit, the claimant's motions for permission to file a late claim are denied.
December 2, 2013
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion (M-83946), filed August 28, 2013;
2. Claimant's Notice of Intention to File Claim, verified July 30, 2013, and annexed exhibits;
3. Affirmation of Douglas R. Kemp (M-83946), dated August 16, 2013, and annexed exhibits;
4. Affirmation of Douglas R. Kemp (M-83946), dated September 23, 2013, and annexed exhibit;
5. Claimant's Notice of Motion (M-84135), filed October 10, 2013, and annexed exhibits;
6. Affirmation of Douglas R. Kemp (M-84135), dated October 21, 2013, and annexed exhibit;
7. Claimant's Notice of Motion (M-84135 and M-83946), filed October 24, 2013, and annexed exhibits.