Opinion
# 2015-041-022 Claim No. NONE Motion No. M-86032
02-26-2015
RICHARD PANNITTI v. THE STATE OF NEW YORK
RICHARD PANNITTI Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Thomas R. Monjeau, Esq. Assistant Attorney General
Synopsis
Application to file late claim alleging medical negligence is denied where claimant fails to offer adequate excuse for delay or to show appearance of merit through medical affidavit, medical records or other proof.
Case information
| UID: | 2015-041-022 |
| Claimant(s): | RICHARD PANNITTI |
| Claimant short name: | PANNITTI |
| 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-86032 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | RICHARD PANNITTI Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Thomas R. Monjeau, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 26, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves for permission to file a late claim pursuant to Court of Claims Act § 10 (6).
Defendant opposes the motion.
Court of Claims Act § 10 (6) provides at relevant part as follows: "The claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application."
Claimant's application does not include a verified proposed claim. Davis v State of New York (28 AD2d 609, 610 [3d Dept 1967]), explains:
"[T]he application as filed was not accompanied by a proposed claim as required by subdivision 5 of section 10 of the Court of Claims Act, 'containing all of the information set forth in section eleven of this act' and the granting of the application where the motion papers did not comply with the statute was error."
Claimant's motion for permission to file and serve a late claim is defective on this ground alone.
Claimant's application does include an unverified "NOTICE OF INTENTION TO FILE LATE CLAIM" which, together with claimant's affidavit, the Court will consider as the proposed claim.
Claimant, an inmate at Clinton Correctional Facility (Clinton), alleges that on August 6, 2014 he noticed that "his lower extremities were swollen more than usual." Claimant further alleges that the "[Clinton] infirmary . . . staff advised the dorm officer that they would not see me." Claimant asserts that the "Dorm officer then advised claimant to file for 'emergency sick-call' but that if he did, he would receive a disciplinary infraction." Claimant was ultimately seen by Clinton medical staff on August 11, 2014 and was treated at Albany Medical Center Hospital until September 2, 2014.
Claimant states that "since medical staff ignored my initial condition of swelling, I had an advanced stage of Pneumonia . . . which caused damage to my heart." Claimant says his "claim is for medical negligence, deliberate indifference."
Court of Claims Act § 10 (6) provides that the Court, upon application and in its discretion, may permit the late filing and service of a claim "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 civil practice law and rules."
The claim accrued on or about August 6, 2014 and the late claim application was made on December 5, 2014. Claimant's cause of action sounding in medical malpractice is not time-barred by the two years and six months limitations period set forth in CPLR 214-a.
In determining the application, Court of Claims Act § 10 (6) provides that:
"[T]he court shall consider, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy."
In reviewing a late claim application, "the Court of Claims is required to consider, among other factors, those enumerated in Court of Claims Act § 10 (6), no one factor being controlling" (Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]; see Matter of Duffy v State of New York, 264 AD2d 911, 912 [3d Dept 1999]). In fact, "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]).
Further, "it is well settled that the Court of Claims' broad discretion in this area should be disturbed only in the face of clear abuse" (Calco v State of New York, 165 AD2d 117, 119 [3d Dept 1991], lv denied 78 NY2d 852 [1991]).
Claimant's supporting affidavit fails to offer a reasonable excuse for the delay in filing and serving the claim. Neither claimant's stay in the hospital for twenty-two days beginning on August 11, 2014, nor his alleged ignorance of the law, constitutes a reasonable excuse for his failure to timely file and serve the claim within ninety days of its accrual.
The Court finds that the claimant's medical records regarding his treatment at Clinton, together with the records of Albany Medical Center Hospital, provide defendant with notice of the essential facts and an opportunity to investigate the claim. Defendant will thus suffer no prejudice in defending the claim.
Claimant may, arguably, have an alternative remedy in U.S. District Court for purported federal constitutional violations insofar as the defendant's alleged acts and omissions constitute a deliberate indifference to claimant's medical needs.
Section 10 (6) requires that the proposed claim not be "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" (Rizzo v State of New York, 2 Misc 3d 829, 834 [Ct Cl 2003]; see Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl 2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). In Witko v State of New York (212 AD2d 889, 891 [3d Dept 1995]), the court noted that a proposed claim offered in a section 10 (6) application need only have "the appearance of merit."
Claimant has not provided the affidavit of a medical expert to support his claim of medical negligence. Further, the Albany Medical Center Hospital Discharge Summary submitted by claimant provides no evidence, or even an indication, of defendant's medical negligence or deliberate indifference to claimant's medical needs.
The Albany Medical Center Hospital Discharge Summary provided by claimant does not demonstrate "that the treatment rendered [by defendant] was medically inappropriate or harmful . . . [n]one of these elements is established by claimant's medical records. Thus, expert medical evidence clearly is required to demonstrate that the diagnosis and treatment rendered to claimant by state personnel departed from accepted medical practices and standards [citations omitted]" (Matter of Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002]).
In Matter of Robinson v State of New York (35 AD3d 948 [3d Dept 2006]), claimant alleged in a late claim application, among other things, that a surgical procedure performed by defendant had caused claimant to suffer a skin rash. In Robinson (35 AD3d at 950), the court stated, "[m]oreover, claimant provided no medical records or expert medical proof to support his allegations of medical malpractice . . . [w]e, therefore, find no abuse of discretion in the denial of claimant's application to file a late notice of claim with respect to the January 2005 surgical procedure."
As in Perez (293 AD2d at 919), "[t]he excuse offered for the delay is inadequate and the proposed claim is of questionable merit."
Balancing the factors set forth in Court of Claims Act § 10 (6), the claimant's motion for permission to file a late claim is denied.
February 26, 2015
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion to File Late Claim, filed December 8, 2014;
2. Affidavit of Richard Pannitti, sworn to December 3, 2014, and annexed exhibits;
3. Affirmation of Thomas R. Monjeau, dated January 8, 2015, and annexed exhibit;
4. Reply Affidavit of Richard Pannitti, sworn to January 24, 2015.