Opinion
# 2015-010-031 Claim No. NONE Motion No. M-86595
05-29-2015
ERIC BARKSDALE v. THE STATE OF NEW YORK
ERIC BARKSDALE Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York By: Dian Kerr McCullough, Assistant Attorney General
Synopsis
Movant's late claim application denied, failed to establish appearance of merit.
Case information
| UID: | 2015-010-031 |
| Claimant(s): | ERIC BARKSDALE |
| Claimant short name: | BARKSDALE |
| 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-86595 |
| Cross-motion number(s): | |
| Judge: | Terry Jane Ruderman |
| Claimant's attorney: | ERIC BARKSDALE Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York By: Dian Kerr McCullough, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 29, 2015 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers numbered 1-2 were read and considered by the Court on movant's late claim application:
Notice of Motion, Movant's Supporting Affidavit, Exhibits, Memorandum of Law........................................................................................................................1
Attorney's Affirmation in Opposition and Exhibits.................................................2
Movant seeks leave to serve and file a late claim alleging that on February 5, 2014, during his incarceration at Sing Sing Correctional Facility (Sing Sing), movant complained to the medical staff about blood in his urine, pain and difficulty urinating. The proposed claim further alleges that movant "made constant visits to the infirmary and took several urine analyses, which revealed blood samples" and "[a]fter going to the infirmary several times and receiving no help from the medical staff" movant visited a psychiatrist to help movant resolve his issues with Sing Sing medical staff (Proposed Claim, ¶ 6). At the "end of October" (id. ¶ 7), movant was given an appointment with a urologist. In November, the urologist "performed certain procedures" on movant (id. ¶ 8). Movant was prescribed "Ciproflaxcin [sic]" which caused "more bleeding" (id. ¶ 9). Movant contends that it should not have taken 11 months for him to see a urologist because his problem was of grave concern and he could have bled to death (¶ 11).
It is unclear as to how movant calculated the alleged 11 months, as his first complaint was in February 2014 and he saw a urologist in October 2014.
A most liberal reading of the proposed claim seems to allege that defendant was negligent in failing to provide movant with more timely treatment from a urologist and that this caused movant to suffer "psychological and physical distress, pain and suffering, fear and other trauma emotional, incidental" (id. ¶ 14).
The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in subdivision 6 of section 10 of the Court of Claims Act: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]).
Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977] ). "A general allegation of negligence on the part of the State is insufficient to establish a meritorious cause of action" (Witko v State of New York, 212 AD2d 889, 891 [3d Dept 1995]).
The Court has considered all of the factors under Court of Claims Act § 10 (6) and finds that, most significantly, claimant failed to establish the appearance of merit of his allegations and that this factor weighed heavily in the Court's determination of whether to grant his application (see Langner v State of New York, 65 AD3d 780 [3d Dept 2009] [late claim application denied even though defendant admitted no prejudice where conclusory allegations were not enough to show a meritorious cause of action]; Matter of Brown v State of New York, 6 AD3d 756 [3d Dept 2004] [late claim application denied where excuse was inadequate and proposed claim was of questionable merit]). Notably, claimant failed to submit any medical records or competent medical evidence, either from a treating physician or medical expert to support his allegations that he was denied appropriate medical care and treatment (see Matter of Robinson v State of New York, 35 AD3d 948 [3d Dept 2006] [late claim application denied where claimant failed to provide medical records or expert proof to support allegations of medical malpractice committed during his incarceration]). "Moreover, even assuming improper delay in providing treatment, it was incumbent upon claimant to show by competent expert evidence that the delay was a cause of [the] alleged ensuing medical problems" (Trottie v State of New York, 39 AD3d 1094, 1095 [3d Dept 2007]; see also Naughton v Arden Hill Hosp., 215 AD2d 810 [3d Dept 1995] [even assuming defendant committed malpractice in its failure to diagnose and admit patient to hospital, there was no proof of proximate cause, i.e., that, had the patient been admitted, the risk of a heart attack would have been prevented or lessened]; Brown v State of New York, 192 AD2d 936 [3d Dept 1993] [no proof that delay in treatment contributed to the loss of claimant's larynx]). In the absence of such evidence, movant's unsubstantiated assertions and speculations are insufficient to establish the appearance of merit (see, Mosberg v Elahi, 176 AD2d 710 [2d Dept 1991], affd 80 NY2d 941 [1992] [in opposition to a motion to dismiss for failure to prosecute, expert medical evidence was necessary to establish a meritorious cause of action regarding matters not within the knowledge and ordinary experience of lay persons]).
Upon careful consideration, the Court DENIES movant's motion for leave to serve and file a late claim (see Qing Liu v City Univ. of N.Y., 262 AD2d 473 [2d Dept 1999]; Matter of Gallagher v State of New York, 236 AD2d 400 [2d Dept 1997]).
May 29, 2015
White Plains, New York
Terry Jane Ruderman
Judge of the Court of Claims