Opinion
# 2017-041-056 Claim No. NONE Motion No. M-90387
08-16-2017
STEPHAN MERRITT v. THE STATE OF NEW YORK
STEPHAN MERRITT Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Belinda A. Wagner, Esq. Assistant Attorney General
Synopsis
Application to file late medical malpractice claim is denied where, pursuant to Court of Claims Act 10 (6), "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" and where claimant fails to show appearance of merit through medical affidavit, medical records or other proof.
Case information
| UID: | 2017-041-056 |
| Claimant(s): | STEPHAN MERRITT |
| Claimant short name: | MERRITT |
| 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-90387 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | STEPHAN MERRITT Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Belinda A. Wagner, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 16, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves for permission to file a late claim pursuant to Court of Claims Act 10 (6). Defendant opposes the application.
Claimant, an inmate at Clinton Correctional Facility (Clinton), states in his proposed claim that defendant is liable for "Medical Negligence/Malpractice by medical staff" beginning "on or about July 2012" when defendant was "notified and aware of claimant's chronic back pain complaints" but engaged in "delay in properly treating the Claimant."
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."
The application was served on or about May 22, 2017, nearly five (5) years after the cause of action for delay in medical treatment accrued, on or about July 2012.
Claimant's cause of action alleging medical malpractice or medical negligence is time-barred by both the two years and six months limitation period set forth in CPLR 214-a (medical malpractice) and the three year period described in CPLR 214 (negligence).
Even had claimant made a timely application, it would be denied. In determining a late claim 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, 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 has offered no reasonable excuse for his delay in either making a timely claim or in making a timely application to file a late claim.
The Court notes that the claimant's medical records regarding his treatment at Clinton, together with the available records of claimant's outside hospital treatment, provide defendant with notice of the essential facts and an opportunity to investigate the claim. Defendant would thus suffer no prejudice in defending the claim.
Claimant may, arguably, have an alternative remedy in U.S. District Court for purported federal constitutional violations insofar as the defendant's alleged acts and omissions constitute a deliberate indifference to claimant's medical needs.
Most importantly, Court of Claims Act 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]).
Further, "[w]here medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is a required element of a prima facie case" (Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 [1996]; see Tatta v State of New York, 19 AD3d 817 [3d Dept 2005], lv denied 5 NY3d 712 [2005]; Trottie v State of New York, 39 AD3d 1094 [3d Dept 2007]).
The fact that claimant proceeded pro se does not excuse the need for expert medical opinion to demonstrate a deviation from the applicable standard of care (Duffen v State of New York, 245 AD2d 653, 653-654 [1997], lv denied 91 NY2d 810 [1998]).
Claimant has not provided the affidavit of a medical expert in support of his claim of medical malpractice.
The piecemeal medical documents provided by claimant do not demonstrate "that the treatment rendered was medically inappropriate or harmful . . . [n]one 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 [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. In Robinson (35 AD3d at 950), the court stated, "[m]oreover, 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 Matter of Perez v State of New York (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.
August 16, 2017
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion, filed May 10, 2017; 2. Affidavit of Stephan Merritt, sworn to April 20, 2017, and annexed exhibits, including proposed claim; 3. Affirmation in Opposition of Belinda A. Wagner, dated June 7, 2017, and attached exhibit; 4. Reply Affidavit of Stephan Merritt, sworn to June 15, 2017, and annexed exhibits.