Opinion
# 2011-040-070 Motion No. M-80389
12-02-2011
ALEX v. THE STATE OF NEW YORK
Synopsis
Motion for permission to file a claim late granted. Case information
UID: 2011-040-070 Claimant(s): JOSEPH ALEX Claimant short name: ALEX Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): NONE Motion number(s): M-80389 Cross-motion number(s): Judge: CHRISTOPHER J. McCARTHY HERZFELD & RUBIN, P.C. Claimant's attorney: By: Jennifer K. Fink, Esq. ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General of the State of New York By: Belinda A. Wagner, Esq., AAG Third-party defendant's attorney: Signature date: December 2, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
For the reasons set forth below, the application of Movant, Joseph Alex, to serve and file a late claim pursuant to Court of Claims Act § 10(6) is granted.
Attached to the affidavit of Movant's counsel, Jennifer K. Fink, Esq., is a copy of his proposed Claim (see Ex. A). The proposed Claim and the affidavit of Movant's counsel allege that, from May 2008 until October 2, 2009, Movant was incarcerated and under the care and control of the Department of Correctional Services (DOCS).
Effective April 2011, the Department of Correctional Services and Division of Parole were merged to form the Department of Corrections and Community Supervision (DOCCS).
In May 2008, Movant underwent screening at Ulster Correctional Facility before being permanently transferred to Gouverneur Correctional Facility in Gouverneur, New York (Gouverneur). Movant was incarcerated at Gouverneur from June 2008 until October 2, 2009. During that time, Movant was temporarily placed at Hale Creek Correctional Facility from approximately January 21, 2009 to August 2009 in order to take part in a prison program. Movant returned to Gouverneur in August 2009, where he remained until his release on or about October 2, 2009.
While he was incarcerated, Movant was seen at the prison's Division of Health Services for a series of prostatic and related conditions that he experienced beginning on May 23, 2008 up until his release from prison. On September 17, 2009, Gouverneur's Division of Health Services transferred Movant to a local hospital, E.J. Noble Hospital, for evaluation due to his inability to urinate and suprapubic pain. Subsequently, E.J. Noble Hospital transferred Movant to Upstate Medical University Hospital (Upstate) for treatment on September 18, 2009. Upstate is owned and operated by the State of New York. At Upstate, a suprapubic tube was placed in Movant's abdomen to assist him in going to the bathroom. He was discharged from Upstate later that day (Exs. D and E attached to the Motion are medical records from E.J. Noble Hospital and Upstate).
Following Movant's treatment at Upstate, he was admitted to Gouverneur's infirmary on September 18, 2009, and he remained there until approximately October 2, 2009 when he was released from prison.
Upon his release from prison, Movant moved to New Jersey and continued to seek treatment for his urological difficulties at Community Medical Center in Toms River, New Jersey, and with Vance Moss, M.D. On March 23, 2010, Movant underwent an attempted transurethral resection of his prostate and cystoscopy at the Community Medical Center. On that date, samples of Movant's prostate tissue were taken and analyzed. He was subsequently diagnosed with prostate cancer, specifically adenocarcinoma of the prostate tissue with a total Gleason's grading score of 7 (see Ex. B attached to Motion).
Pursuant to Court of Claims Act § 10(6), it is within the Court's discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Movant asserts that he was under the continuous medical treatment of Defendant from May 23, 2008 until October 2, 2009. Thus, the first issue for determination upon any late claim motion is whether the application is timely. Since the proposed claim asserts a cause of action for medical malpractice and that Movant's cause of action accrued on October 2, 2009, when Defendant's continuous medical treatment of Movant ended (CPLR §214-a, a two-year-and-six-month Statute of Limitations), the Court concludes that the medical malpractice cause of action is properly before the Court. The proposed Claim also asserts causes of action for medical negligence and negligence (CPLR § 214[5], a three-year Statute of Limitations). Movant's motion was filed with the Clerk of the Court on September 7, 2011. Thus, the Court can only consider any negligence cause of action that accrued on or after September 7, 2008.
Next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]). However, the burden rests with Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
The first factor to be considered is whether the delay in filing the claim was excusable. Movant's counsel asserts that Movant was not diagnosed with prostate cancer until March 2010 and, because of his health issues, Movant did not contact counsel until late 2010 regarding this matter (see also Ex. G attached to Motion, Movant's affidavit in support). His counsel's office then sought Movant's medical records and did not receive all of Movant's medical records until May 2011 and then had the records reviewed by a board certified urologist. The motion was filed with the Clerk of the Court of Claims on September 7, 2011. As Movant did not learn of his diagnosis until more than five months after his release from prison, his numerous medical procedures and hospital stays thereafter and the considerable period of time required to obtain his medical records and investigate the case, the Court concludes that the delay in filing a Notice of Intention or a Claim was reasonable (Benedict v State of New York, 281 App Div 731 [3d Dept 1952]).
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.
In her affirmation in opposition to the motion, State's counsel asserts that the State objects to the opportunity it had to investigate the incident (Affirmation in Opposition of Belinda A. Wagner, Esq., ¶ 6). At best, the statement can be considered an argument that the State might be substantially prejudiced by the delay in filing. However, counsel has submitted only her own conclusory affirmation in this regard. There is no statement from a potential witness stating that the State attempted an investigation and was unable to do so. The Court concludes that the State did not establish it does not have an opportunity to investigate or that the State will be substantially prejudiced by the delay between the expiration of the 90-day period and the filing of this motion. Thus, the Court concludes these factors weigh in Movant's favor.
The fifth factor to be considered is whether Movant has another remedy available. It appears that Movant does have possible alternate remedies including any action(s) against any attending physicians who were not employees of New York State. Movant was also hospitalized at E.J. Noble Hospital and Community Medical Center. It is possible he may have possible actions against them as well.
The sixth, final 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, subject to dismissal, even if other factors tended to favor the request (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], lv granted 16 NY3d 703 [2011], affd sub nom. Donald v State of New York, 17 NY3d 389 [2011], quoting Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]). It is Movant's burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, supra at 11-12).
"It is fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons" (Rivers v State of New York, 159 AD2d 788, 789 [3d Dept 1990], lv denied 76 NY2d 701[1990]. To the extent the proposed claim alleges medical malpractice, the merit of the claim must be patently revealed by medical records or supported by an expert affidavit (see Matter of Robinson v State of New York, 35 AD3d 948, 950 [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]; Vespucci v State of New York, Claim No. 112571, Motion Nos. M-72230, M-72475, dated February 16, 2007, DeBow, J. [UID No. 2007-038-505]; Jackson v State of New York, Claim No. None, Motion No. M-72630, dated January 10, 2007, Mignano, J. [UID No. 2007-029-001]). Here, Movant has provided his medical records (Exs. B, C, D, E and F attached to Motion), as well as the affidavit of an expert, Michael S. Brodherson, M.D., who is Board Certified by the American Board of Urology (Ex. H attached to Motion).
At this stage of the proceeding, it should be noted the Court generally takes as true factual allegations of Movant. Based upon the entire record, the Court finds that the proposed Claim has the appearance of merit. Movant need only establish the appearance of merit; he need not prove a prima facie case at this stage of the proceedings.
In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in Movant's favor. The mix of circumstances presented by this case fall well within the remedial purposes of the amendments to the Court of Claims Act enacted in 1976 (L 1976, ch 280), which was designed to vest in the Court of Claims broader discretion than previously existed to permit late filing, indicated a strong concern that litigants with meritorious claims be afforded their day in court (Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, 92 Misc 2d 1033, supra at 1036). Movant has provided ample basis for a favorable exercise of this Court's discretion to grant him leave to file a late claim against the State as set forth above. Therefore, within forty-five (45) days of the date of filing of this Decision and Order, Movant shall file with the Clerk of the Court his proposed Claim against the State and serve a copy of the proposed Claim upon the Attorney General personally or by certified mail, return receipt requested. In serving and filing the Claim, Movant is directed to follow all of the requirements of the Court of Claims Act, including § 11-a, regarding the filing fee, and the Uniform Rules for the Court of Claims.
December 2, 2011
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read on Movant's application for permission to file a late claim:
Papers Numbered
Notice of Motion,
Affidavit & Exhibits Attached 1
Affirmation in Opposition 2
Reply Affirmation 3