Opinion
# 2013-009-019 Motion No. M-83127
07-09-2013
ANTHONY RENTAS v. THE STATE OF NEW YORK
Synopsis
Claimant's application for late claim relief was denied based primarily upon claimant's failure to provide expert medical evidence.
Case information
UID: 2013-009-019 Claimant(s): ANTHONY RENTAS Claimant short name: RENTAS 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-83127 Cross-motion number(s): Judge: NICHOLAS V. MIDEY JR. Claimant's attorney: ANTHONY RENTAS, PRO SE HON. ERIC T. SCHNEIDERMAN Attorney General Defendant's attorney: BY: G. Lawrence Dillon, Esq., Assistant Attorney General, Of Counsel. Third-party defendant's attorney: Signature date: July 9, 2013 City: Syracuse Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, an inmate proceeding pro se, has brought this motion seeking permission to serve and file a late claim.
The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit in Support, Proposed Claim. . . 1- 3
Affirmation in Opposition, with Exhibit 4
Correspondence from claimant (treated as claimant's Reply) 5
As set forth in his proposed claim, claimant alleges that he was injured on September 27, 2011 while participating in his assigned work program at Marcy Correctional Facility, where he was then incarcerated. Claimant further alleges that he injured his wrist when the lid on a dumpster fell on his arm. Claimant alleges that he did not receive prompt medical care, and that the State failed to properly assess his injury, with the result that his fractured wrist did not heal properly.
In order to determine an application for permission to serve and file a late claim, the Court must consider, among other relevant factors, the six factors set forth in Section 10 (6) of the Court of Claims Act. The factors set forth therein are: (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 meritorious; (5) whether substantial prejudice resulted from the failure to timely file and the failure to serve upon the Attorney General a timely claim or notice of intention to file a claim; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim (see Matter of Gavigan v State of New York, 176 AD2d 1117 [3d Dept 1991]).
With regard to excuse, claimant acknowledges that he was unaware of the time requirements for the service and filing of a claim as set forth in the Court of Claims Act. Claimant states that this lack of knowledge was compounded by his incarceration, as well as his limited ability to communicate with the English language.
It is well settled, however, that ignorance of the law is not a reasonable excuse (Innis v State of New York, 92 AD2d 606 [2d Dept 1983], affd 60 NY2d 654; Erca v State of New York, 51 AD2d 611 [3d Dept 1976], affd 42 NY2d 854). Additionally, the fact that a claimant is incarcerated, in and of itself, does not constitute a sufficient and reasonable excuse (Plate v State of New York, 92 Misc 2d 1033 [Ct Cl 1978]). Furthermore, claimant's inability to speak English does not constitute a reasonable and acceptable excuse for failing to timely serve and file a claim (Rodrigues v State of New York, 143 AD2d 993 [2d Dept 1988]). Based on all of the above, therefore, the Court finds that claimant has failed to present an acceptable excuse for his failure to timely serve and file a claim. The factors of notice, opportunity to investigate, and substantial prejudice will be considered together. In his supporting affidavit, claimant alleges that the State had actual notice of the essential facts of his claim since a correction officer was present at the time that claimant was injured and that he witnessed the incident. Claimant further sets forth the dates on which he received medical treatment for his injury, and that there exist "Department Ambulatory Health Record Progress Notes" on numerous dates, as well as other "Departmental Notes and Reports" of other medical treatment received by him for his injured wrist.
The mere fact that claimant received medical treatment over a period of time for his injured wrist does not equate to the type of notice that would alert the State to a potential lawsuit arising from an alleged failure to provide timely and appropriate medical care. Furthermore, claimant has not presented any argument that the State had a sufficient opportunity to investigate the facts and circumstances surrounding this potential claim.
Notwithstanding this lack of notice and opportunity to investigate, however, the Court is of the opinion that since this proposed claim is based upon medical malpractice and/or negligence, and since claimant was an inmate in the custody and control of the Department of Corrections and Community Supervision at all times, the Court believes that sufficient medical records do exist which would provide the State with an adequate basis on which to defend this claim, if permission were to be granted. Therefore, even though this Court finds that claimant has not established notice or an opportunity to investigate, the State would not be substantially prejudiced should it have to defend this claim.
The next factor, often deemed the most critical, is whether the proposed claim has the appearance of merit. If claimant cannot establish a meritorious claim, it would be an exercise in futility to grant a late claim application (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]). In order to establish a meritorious cause of action, claimant has the burden to show that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1 [Ct Cl 1977]). Unlike a party who has timely filed a claim, however, 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]).
When a proposed claim alleges medical malpractice, it is well settled that "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", unless the elements of the claim can be determined "by a layperson on the basis of common everyday experience" (Matter of Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002]; Matter of Robinson v State of New York, 35 AD3d 948 [3d Dept 2006]).
In this particular matter, although claimant has made specific references to dates of treatment and has made references to "Department Ambulatory Health Record Progress Notes" and "Departmental Notes and Reports", he has provided neither medical records nor an expert affidavit in support of his application. The Court is unable to determine, based upon its review of claimant's supporting affidavit, that a meritorious claim of medical malpractice exists based upon claimant's unsupported allegations that the State failed to timely and properly assess claimant's injury. Claimant, therefore, has failed to establish that this claim has the appearance of merit.
It does not appear that claimant has any other available remedy.
Therefore, after reviewing all of papers submitted herein, and after weighing and considering all of the factors set forth under Court of Claims Act § 10 (6), the Court finds that claimant should not be allowed to serve and file his proposed claim.
Accordingly, it is
ORDERED, that Motion No. M-83127 is hereby DENIED.
July 9, 2013
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims