Opinion
# 2015-016-002 Claim No. 113588 Motion No. M-85871
01-20-2015
MARTIN BANKS v. THE STATE OF NEW YORK
Martin Banks, Pro Se Eric T. Schneiderman, Attorney General By: Aaron J. Marcus, AAG
Synopsis
Case information
UID: | 2015-016-002 |
Claimant(s): | MARTIN BANKS |
Claimant short name: | BANKS |
Footnote (claimant name) : | |
Defendant(s): | THE STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 113588 |
Motion number(s): | M-85871 |
Cross-motion number(s): | |
Judge: | Alan C. Marin |
Claimant's attorney: | Martin Banks, Pro Se |
---|---|
Defendant's attorney: | Eric T. Schneiderman, Attorney General By: Aaron J. Marcus, AAG |
Third-party defendant's attorney: | |
Signature date: | January 20, 2015 |
City: | New York |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
In this motion, inmate Martin Banks moves for permission to file a late claim pursuant to section 10 (6) of the Court of Claims Act (the Act). Although he does not annex a proposed claim to his papers, Mr. Banks states that his claim is for "[t]he unauthorized release of claimant's medical records to Attorney General's Office by prison officials, employees and medical staff personnel, without written authorization, or court order after claimant commenced negligence and medical malpractice claim against the state."
Mr. Banks' original claim, which was filed on April 16, 2007, alleges that he was improperly treated for Hepatitis C. Following Banks' commencement of his action, on March 4, 2011, the Office of the Attorney General sought his medical records from Wende Correctional Facility, and they were provided to the Attorney General by Wende on March 10, 2011 (see exhibit C to claimant's moving papers). Wende then provided additional medical records to the Attorney General on June 6, 2011 (see exhibit G to claimant's moving papers).
Ordinarily, in deciding a motion such as this, the Court would consider six factors set forth in the Act: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable; and (6) the claim appears to be meritorious.
As an initial matter here, however, it should be noted that section 10 (6) of the Act provides that permission to file a late claim may not be granted if the relevant statute of limitations has expired. CPLR section 214.5 provides that the statute of limitations for a claim such as this is three years. Assuming the latest possible accrual date of June 6, 2011, the statute of limitations ran on June 6, 2014. The instant late claim motion is dated October 15, 2014 and was filed on October 23, 2014, i.e. beyond the relevant statute of limitations. Accordingly, late claim relief is not available.
Moreover, even if the statute of limitations had not run, it has been held that to permit the filing of a "a legally deficient claim which would be subject to immediate dismissal" would be "futile" (Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]). In this case, subdivision b of 7 NYCRR section 5.24, entitled "Inmate medical records," specifically provides that "[f]or the purpose of providing legal services on behalf of the State, its agencies, officials, employees and persons described in Correction Law, section 24-a, such records may be released to the Office of the Attorney General, and to outside counsel certified pursuant to Public Officers Law, section 17." In addition, "a litigant is 'deemed to have waived the [physician-patient] privilege when, in bringing or defending a personal injury action, that person has affirmatively placed his or her mental or physical condition in issue'" (Arons v Jutkowitz, 9 NY3d 393, 409 [2007] [citations omitted].
In view of the foregoing, having reviewed the submissions, IT IS ORDERED THAT motion No. M-85871 be denied.
The following were reviewed: claimant's notice of motion with affidavit in support and exhibits A through G; and defendant's affirmation in opposition with exhibits A and G.
January 20, 2015
New York, New York
Alan C. Marin
Judge of the Court of Claims