Opinion
# 2012-018-340 Motion No. M-82062
12-12-2012
ALEX YUGADAEV v. STATE OF NEW YORK
Synopsis
The Court has no supporting expert medical documentation before it on this motion and is, therefore, unable to find the proposed claim potentially meritorious. Upon balancing all of the factors in Court of Claims Act § 10 (6), this Court DENIES Movant's motion without prejudice. Case information
UID: 2012-018-340 Claimant(s): ALEX YUGADAEV Claimant short name: YUGADAEV Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): NONE Motion number(s): M-82062 Cross-motion number(s): Judge: DIANE L. FITZPATRICK Claimant's attorney: ALEX YUGADAEV ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: By: Joel L. Marmelstein, Esquire Assistant Attorney General (Retired) Third-party defendant's attorney: Signature date: December 12, 2012 City: Syracuse Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Movant seeks permission to file a late claim pursuant to Court of Claims Act § 10 (6). Defendant opposes the motion.
The proposed claim reads, "[t]he incident started on or about October 28, 2011, when I was given a flu shot by this facility. After the flu shot, I lost my sight in my eye. The medical personnel at the Gouverneur Correctional Facility have been treating me for my loss os [sic] sight since it occured [sic]. However to date, my sight has not returned, all because of the flu shot. My eye is now swollen shut and I can not see anything out of it."
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 § 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]). The motion is timely (Court of Claims Act § 10 [6]; CPLR 214-a; 214 [5]).
On an application for permission to file a late claim, consideration must be given to the six factors listed in Court of Claims Act § 10 (6), and any other relevant factors. A balancing of all of the factors in the discretion of the Court may warrant the granting of the application to file and serve a late claim; no one factor is determinative (Bay Terrace Cooperative Section IV, Inc. v New York State Employees' Retirement System, Policemen's and Firemen's Retirement System, 55 NY2d 979 [1982]; Ledet v State of New York, 207 AD2d 965 [4th Dept 1994]).
The first factor is whether the proposed claimant has an acceptable excuse for failing to timely file and serve a claim. Movant asserts that he is not from this country, is not familiar with our legal system and has lost sight. Unfamiliarity with the legal system here is not a valid excuse (Matter of Galvin v State of New York, 176 AD2d 1185 [3d Dept 1991] appeal denied 79 NY2d 753 [1992]; Matter of Thomas v State of New York, 272 AD2d 650, 651 [3d Dept 2000]). Loss of sight may be a valid excuse under some circumstances, however, Movant has provided no documentation to support his position or to distinguish his circumstances now from the 90 days following October 28, 2011 (see Klinger v State of New York, 213 AD2d 378 [2d Dept 1995]).
Turning now to the factors of the State's notice of the facts underlying the proposed claim, whether it had an opportunity to investigate the facts and whether it will suffer prejudice if the application is granted. Movant asserts that the State had notice of the underlying facts because it has been treating him for his loss of sight. Defendant does not dispute this or asserts it will suffer any prejudice if this application is granted, so the Court will find these factors weigh in favor of allowing the late claim.
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 Authority, 92 Misc 2d 1, 11 [Ct Cl 1977]). The Movant's asserted injury was allegedly the result of being administered the flu vaccine. Movant alleges, as part of this application, that the State required him to get the flu shot. Since whether the flu vaccine should have been required for Movant and whether the vaccine caused a loss of vision are not matters within the competence of a lay person without medical expertise, an affidavit from an expert is necessary to find that there is reasonable cause to believe a valid cause of action exists (see McDermott v Manhattan Eye, Ear & Throat Hosp., 15 NY2d 20, 24 [1964]).The Court has no supporting expert medical documentation before it on this motion and is, therefore, unable to find the proposed claim potentially meritorious.
In this case, the need for an expert affidavit is not dependent upon whether the cause of action is found to be sounding in medical malpractice or negligence, since to establish a causal connection between the flu vaccine and the injury medical expertise is necessary (
The final factor to be considered is whether the Movant has any other available remedy. Movant has no other apparent remedy.
Upon balancing all of the factors in Court of Claims Act § 10 (6), this Court DENIES Movant's motion without prejudice to making a new application.
December 12, 2012
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following documents in deciding this motion:
1) Notice of Motion.
2) Affidavit of Alex Yugadaev, sworn to August 19, 2012, in support with attachments thereto.
3) Affirmation of Joel L. Marmelstein, Esquire, in opposition.
4) Supplement Affidavit of Alex Yugadaev, sworn to September 20, 2012, in support.
see Wood v State of New York, 45 AD3d 1198 [3d Dept 2007]; Tatta v State of New York, 19 AD3d, 817, 818 [3d Dept 2005]).