Opinion
# 2013-038-551 Motion No. M-83734 Motion No. M-83814
09-09-2013
DEANDRE WILLIAMS v. THE STATE OF NEW YORK
Synopsis
Claimant's motion for copy of claim denied as unnecessary. Claimant's motion for permission pursuant to Court of Claims Act § 10 (6) to file and serve a late claim denied. Claimant was previously granted relief in the nature of permission to file and serve a late claim, but he did not do so within the time permitted. In the absence of an excuse for that omission, the Court declines to grant the same relief again. To the extent that claimant has rechararcterized his claim as one for medical malpractice, the motion is unsupported by a showing of the appearance of merit of such a cause of action and thus, late claim relief is denied.
Case information
UID: 2013-038-551 Claimant(s): DEANDRE WILLIAMS Claimant short name: WILLIAMS 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-83734, M-83814 Cross-motion number(s): Judge: W. BROOKS DeBOW Claimant's attorney: DEANDRE WILLIAMS, Pro se ERIC T. SCHNEIDERMAN, Attorney General Defendant's attorney: of the State of New York By: Benjamin L. Maggi, Assistant Attorney General Third-party defendant's attorney: Signature date: September 9, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, an individual incarcerated in a state correctional facility, has made two motions, numbers M-83734 and M-83814, which will be considered and decided together in this Decision and Order. By way of background, claimant previously moved for permission to file and serve a late claim in which he alleged that "correctional staff 'broke [his] finger in a malicious manner by holding [his] hand through the feed up slot & slamming the hatch closed on it' and that the facility nurse and a doctor 'acted negligently in cancelling [the] operation on [his] finger' " (Williams v State of New York, UID No. 2013-038-527 [Ct Cl, DeBow, J., May 17, 2013]). The motion was granted in part to the extent that "claimant is granted permission to serve and file a late claim asserting a cause of action arising from allegedly retaliatory conduct" (id.), and the motion was denied in all other respects. Claimant was directed to file and serve the authorized late claim not later than thirty days after the date of filing of the Decision and Order (see id.), a time period which expired on July 1, 2013.
In motion number M-83734, which is dated July 12, 2013, claimant requests "to be provided a copy of the claim filed under motion # M83123 to refile" (Notice of Motion). The Court can assume only that claimant is referring to the proposed claim that accompanied motion number M-83123. The motion will be denied. Claimant offers no reason why he requires a copy of that proposed claim, and indeed, a copy of that document is appended as Exhibit C to claimant's motion number M-83814, which is dated July 26, 2013. Thus, to the extent that claimant lacked a copy of the proposed claim when he made motion number M-83734 on July 12, 2013, it appears that he found or otherwise came into possession of a copy of it thereafter and thus, his request for a copy from the Court is unnecessary.
In motion number M-83814, claimant seeks permission to file and serve a late claim that alleges the same incident(s) and misfeasance as alleged in the proposed claim that was submitted in support of the motion that was previously decided on May 17, 2013. As stated above, the prior motion was denied except to the extent that claimant was granted permission to file and serve a claim asserting a cause of action alleging retaliatory conduct, and claimant was instructed to do so not later than July 1, 2013. It appears that he did not do so.
Claimant's prior motion characterized his proposed claim as sounding in excessive force, medical negligence, and deliberate indifference. In deciding the prior motion, the Court disagreed with defendant's interpretation of the proposed claim as one sounding in medical malpractice, and construed the allegations to sound in assault (slamming a feed-up slot door on claimant's hand) and retaliation (cancelling surgery to claimant's finger). Claimant's instant motion is supported by a proposed claim that asserts the same factual allegations as the previously submitted proposed claim, but he now characterizes the claim as being for "Medical Malpractice in which I was purposely denied proper medical attention" (Affidavit of DeAndre Williams in Support of Motion to File Late Claim, sworn to July 26, 2013). To the extent that the instant motion seeks to assert a cause of action for retaliatory conduct (e.g., purposeful denial of medical attention), such a claim was permitted to be filed and served by the Court's prior decision. Claimant has offered no reason why such was not accomplished in a timely manner, and in the absence of a proffered excuse for that omission, the Court declines to grant claimant's second application for relief that has already been granted.
To the extent claimant now characterizes his claim as sounding in medical malpractice (e.g., denied proper medical attention), a party alleging medical malpractice must demonstrate that the defendant "breached the standard for good and acceptable care in the locality where the treatment occurred and that [the] breach was the proximate cause of [the claimed] injury" (Bracci v Hopper, 274 AD2d 865, 867 [3d Dept 2000]), and an expert's affidavit will generally be required to demonstrate the appearance of merit that is required in support of a motion to file a late claim sounding in medical malpractice (see Matter of Perez v State of New York, 293 AD2d 918 [3d Dept 2002] [expert medical opinion evidence required in support of Court of Claims Act § 10 (6) motion]; Schreck v State of New York, 81 AD2d 882 [2d Dept 1981] [Court of Claims abused discretion in granting Court of Claims Act § 10 (6) motion on a proposed medical malpractice claim without supporting medical affidavit]; see also Rosario v State of New York, 8 Misc 3d 1007[A], 2005 NY Slip Op 50981[U], at *11-12 [Ct Cl 2005]; Shepherd v State of New York, UID No. 2010-038-577 [Ct Cl, DeBow, J., Oct. 21, 2010]). Here, claimant has not supported his motion for late claim relief with an expert affidavit that demonstrates the merit of his allegations of medical malpractice, nor does he point to anything in his exhibits that may demonstrate that defendant's medical staff departed from accepted standards of medical care. Rather, claimant's submission demonstrates that his surgery was cancelled because claimant refused a pre-operative medical callout (see Claimant's Exhibit C, Sub-exhibit 5-B [Correspondence from J. Otis, dated Nov. 23, 2011]; Sub-exhibit 7 [NYSDOCCS Request & Report of (Medical) Consultation, dated Oct. 31, 2012)]), and there is no demonstration that the cancellation of surgery to claimant's finger for that reason is a departure from accepted standards of care. In the absence of a showing of merit of a cause of action for medical malpractice, claimant's instant motion will be denied.
In sum, it is
ORDERED, that claimant's motion number M-83734 is DENIED, and it is further
ORDERED, that claimant motion number M-83814 is DENIED.
September 9, 2013
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims
Papers considered:
(1) Decision and Order in Williams v State of New York, UID No. 2013-038-527 (Court of Claims, DeBow, J., May 17, 2013 [Motion Number M-83123]), and Papers Considered therewith;
(2) Notice of Motion (M-83734), dated July 12, 2013, with Exhibits A-C;
(3) Affirmation of Benjamin L. Maggi, AAG in Response to Movant's Notice of Motion, dated August 1, 2013;
(4) Notice of Motion (M-83814) to File Late Claim, dated July 26, 2013;
(5) Affidavit in Support of Motion to File Late Claim, sworn to July 26, 2013, with "Claim" with Exhibits A-C;
(6) Affirmation of Benjamin L. Maggi, AAG in Opposition to Movant's Motion to Late File, dated August 14, 2013.