Opinion
# 2013-041-001 Motion No. M-82313
01-04-2013
GRANVILLE BOST v. THE STATE OF NEW YORK
Synopsis
Application to file late claim alleging civil rights violation and medical malpractice is denied where acts and omissions set forth in proposed claim took place at county correctional facility and, to the extent claimant alleges medical negligence by defendant, proposed claim lacks appearance of merit. Case information
UID: 2013-041-001 Claimant(s): GRANVILLE BOST Claimant short name: BOST 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-82313 Cross-motion number(s): Judge: FRANK P. MILANO GRANVILLE BOST Claimant's attorney: Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General Defendant's attorney: By: Jessica Hall, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: January 4, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, an inmate at Mt. McGregor Correctional Facility (Mt. McGregor), moves for permission to file a late claim pursuant to Court of Claims Act § 10 (6).
The proposed claim (entitled Notice of Intention to File Claim) alleges that a correction officer at Ulster County Correctional Facility improperly disposed of claimant's mail and that a nurse employed at Ulster County Jail "gave the claimant a narcotic drug that claimant should not have had due to chronic liver disease."
The Court of Claims is a court of limited jurisdiction, charged with "exclusive jurisdiction over actions for money damages against the State," based upon the acts or omissions of its agencies or employees, where the State is the real party in interest (Monreal v New York State Dept. of Health, 38 AD3d 1118, 1119 [3d Dept 2007]; Woodward v State of New York, 23 AD3d 852, 855-856 [2005], lv dismissed 6 NY3d 807 [2006]; NY Const., Art. VI, § 9; Court of Claims Act § 9). The Court thus lacks jurisdiction over the proposed claim to the extent it alleges improper conduct on the part of employees of a county jail facility (see Morell v Balasubramanian, 70 NY2d 297 [1987]).
The proposed claim also alleges unspecified medical negligence on the part of the State of New York.
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." Claimant's cause of action sounding in medical malpractice, which accrued sometime after January 6, 2012, is not time-barred by CPLR Article 2.
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, v New York State Employees' Retirement Sys. Policemen's & 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]).
Neither ignorance of the law nor "conclusory allegations that one is incarcerated and without access to legal references" constitute a reasonable excuse for untimely filing and service (Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002])
Although claimant has failed to offer a reasonable excuse for his failure to timely file and serve the claim, "the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief" (Bay Terrace Coop. Section IV, 55 NY2d at 981).
The Court finds that the relatively short period of time which elapsed between the earliest possible accrual date of January 6, 2012 and the service of the application on or about October 4, 2012, together with the presumed existence of medical records at Mt. McGregor, provide defendant ample opportunity to timely investigate the claim as the "delay was minimal and the respondent was not prejudiced thereby" (Matter of Hughes v State of New York, 25 AD3d 800 [2d Dept 2006]). In this regard, it is generally recognized that prejudice is more likely to result where a proposed claim involves conditions (such as ice or snow) which are "transitory in nature" (Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]). The proposed claim does not arise from a transitory condition.
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 provided neither medical records nor affidavits of medical or pharmacological experts in support of his claim of medical malpractice. Claimant offers no admissible proof "that the treatment rendered was medically inappropriate or harmful . . . [or] 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, among other things, that a surgical procedure performed by defendant had caused claimant to suffer a skin rash. The Robinson court stated (35 AD3d at 950) as follows:
"Moreover, claimant provided no medical records or expert medical proof to support his allegations of medical malpractice (see Matter of Gonzalez v State of New York, supra at 676; Matter of Perez v State of New York, supra at 919). 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."
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.
January 4, 2013
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Motion for Permission to File Late Notice of Claim, filed October 12, 2012;
2. Affidavit of Granville Bost, sworn to October 4, 2012, and annexed exhibit;
3. Affirmation of Jessica Hall, dated November 1, 2012, and annexed exhibits.