UID:	2015-040-006
Claimant(s):	JASON EARL CAMPO
Claimant short name:	CAMPO
Footnote (claimant name) :
Defendant(s):	STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s):	NONE
Motion number(s):	M-85688
Cross-motion number(s):
Judge:	CHRISTOPHER J. McCARTHY
Claimant's attorney:	Jason Earl Campo, Pro Se
Defendant's attorney:	ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Douglas R. Kemp, Esq., AAG
Third-party defendant's attorney:
Signature date:	February 3, 2015
City:	Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

For the reasons set forth below, the application of pro se Movant, Jason Earl Campo, to serve and file a late claim pursuant to Court of Claims Act § 10(6) is granted in part and denied in part.

The proposed Claim, attached to the motion papers, alleges that, on August 17, 2013, while incarcerated at Franklin Correctional Facility (hereinafter "Franklin") Movant re-injured his right shoulder lifting equipment out of the recreational yard shack where the equipment is kept for the inmates, as part of his job at Franklin. Movant asserts that he was put to work in the yard as an aide about two weeks after he arrived at Franklin. He asserts that he advised the facility that he had an injury to his right shoulder when he arrived at Franklin. He further states that Franklin received documentation regarding the disability to his shoulder from the county jail where he was incarcerated prior to being transferred to Franklin.

Movant also included in his motion papers a Notice of Intention to File a Claim. This document includes a more detailed description of the incident that occurred on August 17, 2013 in the Franklin recreation yard. Movant states that his job included passing out equipment that inmates requested; that an inmate requested a heavy bag, which is a 75-pound punching bag. Movant asserts that, as he went to pick up the bag, he felt something tear in his shoulder.

The Court notes that both the proposed Notice of Intention and the proposed Claim were verified on the same date, August 29, 2014.

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. Thus, the first issue for determination upon any late claim motion is whether the application is timely. Since the proposed Claim appears to assert either a cause of action for medical malpractice (CPLR §214-a, a two-year-and-six-month Statute of Limitations) or for negligence in that the facility assigned him to an inappropriate job based on his medical condition (CPLR § 214[5], a three-year Statute of Limitations), and Movant asserts that the claim accrued on August 17, 2013, the motion is timely made.

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. In his Reply to Defendant's Opposition, Movant asserts that he was not aware of the Court's short filing period and that the staff at the law library at Franklin gave him false information. Neither ignorance of the law nor confinement to a correctional facility is an acceptable excuse for failure to timely file a claim (Matter of Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006]). Moreover, Movant asserts that he was waiting to see how severe his injury was prior to filing the Claim. However, tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., supra at 981).

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. Defendant does not argue lack of notice, lack of opportunity to investigate, or that it will be substantially prejudiced by a delay in filing a claim (see Affirmation in Opposition of Douglas R. Kemp, Esq.). Those factors, therefore, weigh in Movant's favor.

The fifth factor to be considered is whether Movant has another remedy available. It appears that Movant does not have a possible alternate remedy.

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., supra at 11-12).

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, including the proposed Notice of Intention and the proposed Claim, the Court finds that the proposed cause of action asserting negligence in assigning Movant to the job of recreation yard aide based upon his medical condition 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.

The Court now turns to the proposed cause of action alleging improper medical care. "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]). In order to maintain an action for injuries sustained while under the care and control of a medical practitioner and/or medical facility, "a party may proceed upon a theory of simple negligence, or upon the more particularized theory of medical malpractice" (Hale v State of New York, 53 AD2d 1025 [4th Dept 1976], lv denied 40 NY2d 804 [1976]). "The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by [laypersons], or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts" (Miller v Albany Med. Ctr. Hosp., 95 AD2d 977, 978 [3d Dept 1983]; see Twitchell v MacKay, 78 AD2d 125, 127 [4th Dept 1980]).

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, supra at 950; 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, UID No. 2007-038-505 [Ct Cl, DeBow, J., Feb. 16, 2007]; Jackson v State of New York, UID No. 2007-029-001, [Ct Cl, Mignano, J., Jan. 10, 2007]). The proposed Claim alleges negligent acts relating to Movant's medical treatment at Franklin. However, Movant has not submitted either his medical records, other than an Operative Report dated April 23, 2013, or an expert affidavit stating that Defendant's actions departed from the accepted standard of care (see Matter of Robinson v State of New York, supra at 950; Rosario v State of New York, supra). In the absence of Movant's medical records at Franklin, the merit of any allegations of medical malpractice in his motion papers is not established. Further, in the absence of an expert affidavit, there is no support for his contention that Defendant committed medical malpractice, or that such alleged malfeasance or nonfeasance caused injury to him (see Schreck v State of New York, 81 AD2d 882 [2d Dept 1981]).

In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in Movant's favor with regard to the cause of action relating to negligence in assigning Movant to the job of recreation yard aide based upon his medical condition. 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, 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, as set forth above, 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.

The Court concludes, however, that the interests of justice would be best served by permitting Movant to reapply for permission to file a late claim regarding the medical malpractice cause of action, if he so desires. On such re-application, he must establish that his cause of action for medical malpractice has the appearance of merit by the affidavit of an expert and/or medical records that patently reveal such appearance of merit. Claimant is cautioned, however, that, often, the affidavit of merit is the most likely manner of establishing the appearance of merit of a Claim. The application, moreover, must be timely filed in compliance with the underlying two-year-and-six-month Statute of Limitations (CPLR § 214-a).

February 3, 2015

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 in Support & Exhibits Attached 1

Affirmation in Opposition 2

Response to Affirmation in Opposition 3

Campo v. State

Opinion

Campo v. State

Campo v. State

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Campo v. State

Opinion

Campo v. State

Campo v. State

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