Opinion
# 2014-041-037 Motion No. M-84887
06-20-2014
LATEE ROBINSON v. THE STATE OF NEW YORK
LATEE ROBINSON Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York No Appearance
Synopsis
Application to file late claim alleging, among other things, inadequate medical care is denied where claimant fails to offer adequate excuse for delay or show appearance of merit of proposed claim.
Case information
| UID: | 2014-041-037 |
| Claimant(s): | LATEE ROBINSON |
| Claimant short name: | ROBINSON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption is amended to state the only proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | None |
| Motion number(s): | M-84887 |
| Cross-motion number(s): | |
| Judge: | Frank P. Milano |
| Claimant's attorney: | LATEE ROBINSON Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York No Appearance |
| Third-party defendant's attorney: | |
| Signature date: | June 20, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The claimant, an inmate at Great Meadow Correctional Facility, moves for permission to file a late claim pursuant to Court of Claims Act § 10 (6). Defendant has not appeared in opposition to the motion.
The application is denied.
Initially, the Court notes that claimant's application is unsupported by either affidavit or affirmation and the proposed claim is unverified. The late claim application is fatally defective on those ground alone (see CPLR R 2214; Court of Claims Act §§ 10 and 11).
The proposed claim, to the extent that it can be understood, appears to primarily allege that claimant was not provided adequate medical care and/or equipment by defendant for claimant's vision problems between December 8, 2003 and April 23, 2013.
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."
Based upon the proposed claim's asserted accrual date of "on or about ten years from December 8, 2003 through April 23, 2013," it is evident that many of the causes of action listed, though not described, in the proposed claim are barred by limitations periods set forth in CPLR Article 2.
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 offers no excuse for failing to timely file and serve a claim. In that regard, the Court notes that despite claimant's alleged vision disability, claimant's motion papers demonstrate that he has filed hundreds of grievances with defendant between 2007 and 2011.
Claimant has also failed to adequately show that defendant had notice of the essential facts and an opportunity to investigate the claim.
Many of the documents attached to the proposed claim relate to inmate grievances filed by claimant against defendant. With respect to the allegations of these grievances, claimant has a potential alternative remedy available through a CPLR Article 78 proceeding against defendant.
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]).
To sustain a cause of action for medical malpractice, a claimant must prove, generally through expert medical opinion testimony, two essential elements: (1) a deviation or departure from accepted practice, and (2) that such departure was a proximate cause of claimant's injury (Carter v Tana, 68 AD3d 1577, 1579 [3d Dept 2009]).
It is well settled that "[g]eneral allegations of medical malpractice, [which are] merely conclusory and unsupported by competent evidence tending to establish [its] essential elements . . . are insufficient" to state a prima facie case (Alvarez v Prospect Hosp., 68 NY2d 320, 325 [1986]).
Claimant has provided neither specific probative medical records nor an affidavit of a medical expert in support of his claim of medical neglect and/or malpractice.
The documents provided by claimant do not demonstrate "that the treatment rendered was medically inappropriate or harmful . . . None 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" (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 that, among other things, a surgical procedure performed by defendant had caused claimant to suffer a skin rash. The Robinson court stated that, "claimant provided no medical records or expert medical proof to support his allegations of medical malpractice. We, 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" (Robinson, 35 AD3d at 950).
Here, as in Perez (293 AD2d at 919), "the 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), and in particular recognizing that the claim is of questionable, if any, merit, the claimant's motion for permission to file a late claim is denied.
June 20, 2014
Albany, New York
Frank P. Milano
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion, filed March 17, 2014, and attached exhibits.