Opinion
# 2019-018-038 Claim No. NONE Motion No. M-93391
07-08-2019
KEVIN MATTHEW LA GRAY v. STATE OF NEW YORK
KEVIN MATTHEW LA GRAY Pro Se LETITIA JAMES Attorney General of the State of New York By: Joseph D. Callery, Esquire Assistant Attorney General
Synopsis
Late claim application denied.
Case information
| UID: | 2019-018-038 |
| Claimant(s): | KEVIN MATTHEW LA GRAY |
| Claimant short name: | LA GRAY |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | The Court has amended the caption to reflect the State of New York as the only proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-93391 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | KEVIN MATTHEW LA GRAY Pro Se |
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Joseph D. Callery, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 8, 2019 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant has brought this motion seeking permission to file a late claim. Defendant opposes the motion.
On January 7, 2019, Movant filed a "Motion for Permission to File a Late Claim" with the Clerk of the Court. As part of that motion there is a signed and sworn document in which Movant requests permission to file the "attached claim". Movant indicates that the delay in filing the claim is excusable and provides a description of the alleged medical malpractice. Attached to that "Motion" is a "Notice of Intention" that appears to have been served upon the Attorney General on December 29, 2018. The Court will treat this document as the proposed claim. Also attached is a "Motion for Appointment of Counsel", an affidavit of service, and a verification (referencing a claim). On February 4, 2019, Movant filed an almost identical Motion for Permission to File a Late Claim with the same supporting documents except all sworn to on January 27, 2019 and including an "Affidavit in Support of Application for Fee Reduction/Waiver".
The basis for Movant's application is a surgery he had at the State Univeristy of New York, Upstate Univeristy Hospital (University Hospital) on June 11, 2018, to repair a bilateral mandible fracture with permanent placement of four titanium plates and sixteen screws. Movant alleges that the surgery was not performed properly because several of the screws were rejected and fell out, and he has suffered pain and irritation in his lower jaw as a result. He alleges that the claim arose on August 27, 2018, and he will need an additional surgery to remove the hardware. Movant indicates that this additional surgery will be at Erie County Medical Center in Buffalo, New York.
A proposed claimant who fails to timely file and serve a claim or serve a notice of intention may be permitted, upon application and in the discretion of the Court to file a claim which complies with section 11 of the Court of Claims Act, 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 CPLR (Court of Claims Act § 10 [6]). Movant did not previously serve a timely notice of intention or file and serve a claim in this matter. Nor does it appear that Movant has continued to treat with University Hospital after August 2018. The late claim application is timely (Court of Claims Act § 10 [6]; CPLR 214-a).
To determine whether an application for permission to file a late claim should be granted, consideration must be given to the six factors listed in Court of Claims Act section 10 (6) and any other relevant factors. The presence or absence of any one factor is not determinative (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys., Policemen's and Firemen's Retirement Sys., 55 NY2d 979 [1982]; Ledet v State of New York, 207 AD2d 965 [4th Dept 1994]). Instead, it is a balancing of all of the factors by the Court which may warrant the granting of the application to file and serve a late claim.
Movant asserts that his failure to timely file and serve a claim in this matter is excusable because he had severe complications from his surgery. Movant has not established the time frame for these complications or how he was prevented from timely serving a notice of intention (Mittermeier v State of New York, 101 AD3d 426 [1st Dept 2012] [no physician's affirmation or medical records to support extended convalescence]). As a result, this factor weighs against granting Movant's application.
Turning to whether the State had notice, an opportunity to investigate the facts underlying the proposed claim, or whether the State would suffer prejudice if the application was granted, these factors, being interrelated, will be considered together. It is not clear that the State had notice of the underlying facts that gives rise to this proposed claim, however, there are clearly medical records to assist with any investigation. Although Defendant argues the six-month delay between the initial surgery and this application will prejudice the State, the delay is really minimal given that even a timely claim can be filed 90 days after its accrual. As a result, the Court does not find that Defendant will be substantially prejudiced by the granting of this application.
The next factor, whether the claim appears to be meritorious is referred to as the most essential factor. Unlike a party who has timely filed a claim, one seeking permission to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]). Generally, a proposed claim meets this standard if it is not patently groundless, frivolous, or legally defective, and upon consideration of the entire record there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). Movant has made only allegations of the State's medical malpractice. He has attached no medical records and has provided no expert affidavit or affirmation asserting facts evidencing a meritorious cause of action (Colson v State of New York, 115 Misc 2d 402 [Ct Cl 1982]). Defendant appropriately raised this issue in its responding papers. Movant's lay assertions are insufficient to support a finding of a potential meritorious cause of action (see Decker v State of New York, 164 AD3d 650, 653 [2d Dept 2018]; Schreck v State of New York, 81 Ad2d 882 [2d Dept 1981]; Colson, 115 Misc 2d at 403; Favicchio v State of New York, 144 Misc 2d 212 [Ct Cl 1989]). As a result, this important factor weighs against granting the application. Fortunately, Movant has time to bring a new application.
The final factor to be considered is whether Movant has any other available remedy. Defendant correctly argues that Movant also may have an individual cause of action against the doctor(s).
Upon balancing all of the factors in the Court of Claims Act section 10 (6), this Court, in its discretion, DENIES Movant's motion without prejudice.
July 8, 2019
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding this motion: 1) "Notice of Motion" by Kevin M. LaGray, sworn to December 29, 2018, in support with attachments thereto. 2) Affirmation of Joseph D. Callery, Esquire, in opposition