Opinion
# 2013-045-029 Motion No. M-83595
08-15-2013
MILTON THOMAS v. THE STATE OF NEW YORK
Synopsis
Claimant's motion to file a late claim.
Case information
UID: 2013-045-029 Claimant(s): MILTON THOMAS Claimant short name: THOMAS 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-83595 Cross-motion number(s): Judge: GINA M. LOPEZ-SUMMA Claimant's attorney: Milton Thomas, Pro Se Hon. Eric T. Schneiderman, Attorney General Defendant's attorney: By: Glenn C. King, Assistant Attorney General Third-party defendant's attorney: Signature date: August 15, 2013 City: Hauppauge Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The following papers were read and considered by the Court on this motion: Claimant's Notice of Motion, Claimant's Affidavit, Claimant's Memorandum of Law with annexed Exhibits A-B, Defendant's Affirmation in Opposition and Claimant's Reply Affidavit.
Claimant, Milton Thomas, a pro se inmate, has brought a motion pursuant to Court of Claims Act § 10(6) seeking an order granting permission to file a late claim. Defendant, the State of New York, has opposed the motion.
Claimant alleges that on June 24, 2012 at approximately 1:00 a.m. while he was incarcerated at Altona Correctional Facility he was assaulted by other inmates housed at the facility. Claimant states that had a correction officer been at his post in the dormitory the assault would never have occurred.
Claimant also alleges that on August 20, 2012 at approximately 8:00 a.m. while he was incarcerated at Upstate Correctional Facility he was assaulted by correction officers at the facility.
Lastly, claimant alleges that on October 1, 2012 while he was incarcerated at Green Haven Correctional Facility he was not given appropriate blood tests or provided with a physical therapy regimen.
In addition to his negligence and malpractice claims, claimant contends that his constitutional rights were violated throughout the aforementioned events.
It is well settled that "[t]he Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim" (Matter of Brown v State of New York, 6 AD3d 756, 757 [2004]). In determining whether relief to file a late claim should be granted the Court must take into consideration the factors set forth in Court of Claims Act § 10(6) (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]). The factors are not necessarily exhaustive, nor is the presence or absence of any particular one controlling (id.). Those factors are whether the delay in filing the claim was excusable; whether the defendant had notice of the essential facts constituting the claim; whether the defendant had an opportunity to investigate; whether the defendant was substantially prejudiced; whether the claim appears to be meritorious and whether the claimant has any other available remedy. A proposed claim to be filed, containing all of the information set forth in Court of Claims Act § 11, shall accompany any late claim application.
Claimant does not offer any legally acceptable excuse for the delay in serving the claim in this matter. Thus, this factor is found to weigh against claimant's application.
The next three factors, notice, an opportunity to investigate and prejudice, are interrelated and as such will be considered together. After weighing all the circumstances involved in the present action, these factors are found to support claimant's application.
Claimant does not have an alternative remedy in this matter. Accordingly, this factor is found to support claimant's application.
The most significant issue to be considered is that of merit. To permit the filing of a legally deficient claim would be an exercise in futility (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).
In order for a claim to "appear to be meritorious": (1) it must not be patently groundless, frivolous, or legally defective, and (2) the court must find, upon a consideration of the entire record, including the proposed claim and any affidavits or exhibits, that there is reasonable cause to believe that a valid cause of action exists...[T]he court need only determine whether to allow the filing of the claim, leaving the actual merits of the case to be decided in due course. While this standard clearly places a heavier burden on a claimant who has filed late than upon one whose claim is timely, it does not, and should not, require him to definitively establish the merits of his claim, or overcome all legal objections thereto, before the court will permit him to file (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11-12 [Ct Cl 1977]).
In regard to the June 24, 2012 and August 20, 2012 incidents claimant has established for the purposes of this motion, the appearance of merit. However, to the extent claimant is alleging constitutional violations arising out of those incidents, those portions of the claim do not possess merit. This Court should not imply a State Constitutional remedy when adequate alternative remedies, such as the tort claims sought herein, are available to claimant (Waxter v State of New York, 33 AD3d 1180 [3d Dept 2006]; Martinez v City of Schenectady, 97 NY2d 78 [2001]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]).
In regard to claimant's allegations of medical malpractice and negligent medical treatment this Court finds that the allegations are indicative of claims for medical malpractice (Matter of Barresi v State of New York, 232 AD2d 962, 963 [3d Dept 1996]). In order to establish the appearance of merit in a medical malpractice claim, claimant must set forth that defendant departed from the accepted standard of medical care, and that such a departure was a proximate cause of the injury (Mullally v State of New York, 289 AD2d 308 [2d Dept 2001]). General allegations of medical malpractice that are unsupported by competent evidence establishing the essential elements are insufficient (Torns v Samaritan Hosp., 305 AD2d 965, 966 [3d Dept 2003]). "[E]xpert 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]).
Claimant has failed to present sufficient evidence to support the allegations of medical malpractice in this matter. Additionally, as previously stated, claimant's allegations of State Constitutional violations arising out of the claims of medical malpractice are improperly sought in this matter (Waxter v State of New York, 33 AD3d 1180 [3d Dept 2006]; Martinez v City of Schenectady, 97 NY2d 78 [2001]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]).
Therefore, based upon the foregoing and having considered the statutory factors enumerated in Court of Claims Act § 10(6), the Court finds that the factors favor claimant's application to the limited extent stated herein.
As a result the Court hereby directs claimant to amend his proposed claim by removing all references to constitutional violations from paragraphs 2 and 4. Additionally, the Court hereby directs claimant to amend his proposed claim by removing paragraph 5 in its entirety as well as any other references to constitutional violations, medical negligence and medical malpractice from the proposed claim. Thus, the Court hereby grants claimant's motion to file a late claim as amended in this matter.
Accordingly, within sixty (60) days of the date this decision and order is filed, claimant shall file and serve the amended proposed claim, together with a payment of the appropriate filing fee, pursuant to Court of Claims Act § § 11 and 11-a.
August 15, 2013
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims