Opinion
# 2015-018-642 Claim No. NONE Motion No. M-86323
09-08-2015
COSMIN F. HARRIS, JR. v. STATE OF NEW YORK
COSMIN F. HARRIS, JR. Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esquire of Counsel
Synopsis
Late claim application granted.
Case information
| UID: | 2015-018-642 |
| Claimant(s): | COSMIN F. HARRIS, JR. |
| Claimant short name: | HARRIS |
| 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-86323 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | COSMIN F. HARRIS, JR. Pro Se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esquire of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | September 8, 2015 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant seeks permission to file a late claim in accordance with Court of Claims Act section 10 (6). Defendant submitted an affirmation in opposition. The Court granted Movant two adjournments to allow him time to provide the Court with additional documentation and to provide those same documents to the Assistant Attorney General.
The Court of Claims Act section 10 (6) allows a claimant who has failed to properly serve a notice of intention or who has failed to file and properly serve a claim within the time frame set forth in Court of Claims Act section 10 to make an application to the Court to file such a claim, in the discretion of the Court, at any time before an action asserting a like claim against a citizen of the State would be barred under article two of the CPLR (Court of Claims Act § 10 [6]). Claimant's motion is timely (Court of Claims Act § 10 [6]; CPLR 214 [5]; 214-a).
In addressing an application for permission to file a late claim, consideration must be given to the six factors listed in Court of Claims Act section 10 (6) and any other relevant factors. No one factor is decisive, rather it is a balancing of all of the factors that may support the discretionary decision to grant the application (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys. 55 NY2d 979 [1982]; Ledet v State of New York, 207 AD2d 965 [4th Dept 1994]).
The proposed claim and supporting documents allege that on June 25, 2014, while working in the mess hall at Riverview Correctional Facility, Movant suffered permanent, second degree burns on both forearms from working without a chef's apron, gloves, mittens, or a long-sleeved work uniform while toasting 1600 slices of bread. He alleges that his burn wounds were not properly treated, and he was forced to go back to work until on or about July 9, 2014.
The first factor is whether the delay in filing the claim is excusable. Movant argues that he was threatened "with [u]npleasent [sic] consquences [sic]" which would cause harm to his health, safety, and security. He alleges violations of Corrections Law sections 138 [4] and 138 [5], intimidation and coercion. Movant has not shown or alleged any reason why or how he was exposed to such coercive constraints that prevented his timely filing and service of a claim, yet, at the same facility, he submitted a late claim application, verified within four months of the alleged wrongdoing and filed three months later without intimidation (see Reaves v New York City Housing Auth. 4 Misc 3d 1008 [A] [Sup Ct Queens Co. 2004]; Doe v State of New York, UID No. 2004-028-512 [Ct Cl, Sise, PJ., Mar. 10, 2004]; Smythe v State of New York, UID No. 2000-010-056 [Ct Cl, Ruderman, J., Aug. 23, 2000]). Movant has failed to adequately describe, other than in conclusory form, what prevented his timely filing and serving of a claim and, thus, has not established a valid excuse.
Although the State had some notice of the facts related to this claim, in that Movant made the State employees in the mess hall aware of his injuries and sought treatment in the infirmary, there is no indication that the State was aware of the potential for litigation (see Block v New York State Thruway Auth. 69 AD2d 930 [3d Dept 1979]). This is evident from Movant's own submissions when he notes that no incident report was made, no photographs were taken, and no investigation was conducted, which is an indication that the State lacked notice of the likelihood that a claim would be pursed. However, since a relatively short time had expired between the alleged wrongdoing and when this motion was brought, and Movant's injuries are documented in his medical records, there is some basis for the State to conduct an investigation limiting any prejudice. The State also does not argue that it will incur substantial prejudice if this application is granted.
The next factor, whether the claim appears to be meritorious, is often referred to as the most essential factor. 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 Auth. 92 Misc 2d 1,11 [Ct Cl 1977]). It is well-established that the State owes a duty to provide to its inmates who are engaged in work programs, ". . . reasonably safe equipment and sufficient warnings and instructions for [the] safe operation of the equipment." (Manganaro v State of New York, 24 AD3d 1003, 1004 [3d Dept 2005]; Rosa v State of New York, 63 AD3d 1383, 1384 [3d Dept 2009]). Movant has set forth sufficient facts to support at least a potentially meritorious claim for purposes of this late claim application.
The same, however, cannot be said with respect to the medical malpractice cause of action. Although Movant has submitted copies of some of his medical records, it is not readily apparent, without an affidavit from a medical expert, that Defendant's treatment of his burn injuries fell below the standard of care (Klinger v State of New York, 213 AD2d 378 [2d Dept 1995]; Nyberg v State of New York, 154 Misc 2d 199, 202 [Ct Cl 1992]; Reed v State of New York, 16 Misc 3d 1134 (A) [Ct Cl 2007]). Moreover, Movant's submission of a letter from his mother, a critical surgical technician is not sufficient to establish potential merit.
The final factor is whether the proposed claimant has any other remedy available. It does not appear from the facts as alleged that Movant would have any other remedy.
Accordingly, based upon the foregoing Movant's application is granted, but only for the cause of action arising from the State's negligence in failing to provide him with a safe work environment. Movant is directed to file and serve his proposed claim as to that cause of action, in accordance with the Court of Claims Act and all other applicable rules within 60 days of the date this order is filed with the Clerk of the Court.
September 8, 2015
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding this motion: 1) "Notice of Motion" and unsworn "Motion" of Cosmin F. Harris, Jr., dated November 13, 2014, with attachments thereto. 2) Affirmation of Thomas Trace, Esquire, in opposition. 3) Undated letter from Cosmin F. Harris, in support, received in Chambers April 8, 2015, with attachments thereto. 4) Letter from Thomas Trace, Esquire, dated July 27, 2015.