Opinion
# 2020-054-026 Claim No. NONE Motion No. M-95518
09-01-2020
ADAM WORTH v. NEW YORK STATE DEPARTMENT OF CORRECTIONS & COMMUNITY SUPERVISION
ADAM WORTH Pro Se HON. LETITIA JAMES Attorney General for the State of New York By: Belinda a. Wagner, Assistant Attorney General
Synopsis
Late claim application denied in inmate medical/dental neglect; no appearance of merit.
Case information
| UID: | 2020-054-026 |
| Claimant(s): | ADAM WORTH |
| Claimant short name: | WORTH |
| Footnote (claimant name) : | |
| Defendant(s): | NEW YORK STATE DEPARTMENT OF CORRECTIONS & COMMUNITY SUPERVISION |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-95518 |
| Cross-motion number(s): | |
| Judge: | WALTER RIVERA |
| Claimant's attorney: | ADAM WORTH Pro Se |
| Defendant's attorney: | HON. LETITIA JAMES Attorney General for the State of New York By: Belinda a. Wagner, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 1, 2020 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers numbered 1-2 were read and considered by the Court on movant's application for leave to serve and file a late claim:
Notice of Motion, Claim............................................................................................1
Attorney's Affirmation in Opposition.......................................................................2
Movant submits a claim with his application, which the Court will consider to be the proposed claim. The proposed claim alleges that movant was "the victim of medical/dental neglect" during his incarceration at Greene Correctional Facility when "dental and medical providers failed to provide [movant] with dentures and medical boots in a timely manner" (Claim). The claim asserts an accrual date of March 12, 2020. The State opposes the motion on numerous grounds including that movant failed to address any of the factors set forth in Court of Claims Act § 10 (6) and that, without the aid of an expert opinion, movant cannot establish the appearance of merit of his claims of medical and dental neglect. Additionally, the State maintains that the accrual date is unknown.
The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in subdivision 6 of section 10 of the Court of Claims Act: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]).
In considering all the relevant factors, the Court notes that movant did not address any of the factors and failed to submit a supporting affidavit or any other supporting documentary evidence. While no single factor is determinative, it would be futile to grant a late claim application where the proposed claim is of questionable merit or would be subject to dismissal (see Barnes v State of New York, 158 AD3d 961 [3d Dept 2018]; Ortiz v State of New York, 78 AD3d 1314 [3d Dept 2010]; Savino v State of New York, 199 AD2d 254 [2d Dept 1993]). Unlike a party who has timely filed a claim, a party seeking to file a late claim has the burden of demonstrating that the claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]). Without the aid of movant's medical and dental records and a supporting affidavit from either a treating physician or medical expert opining that there was a departure from the good and accepted standards of medical and dental care and treatment, the Court finds that movant has not established an appearance of merit of his proposed claim (see Matter of Robinson v State of New York, 35 AD3d 948 [3d Dept 2006] [late claim application denied where claimant failed to provide medical records or expert proof to support allegations of medical malpractice committed during his incarceration]). Movant's unsubstantiated assertions are insufficient to establish an appearance of merit (see Mosberg v Elahi, 176 AD2d 710 [2d Dept 1991], affd 80 NY2d 941 [1992] [in opposition to a motion to dismiss for failure to prosecute, expert medical evidence was necessary to establish a meritorious cause of action regarding matters not within the knowledge and ordinary experience of lay persons]; Davis v State of New York, 151 AD3d 1411, 1412 [3d Dept 2017]).
Thus, the Court finds that movant has not made a sufficient showing to warrant granting his late claim application (see Langner v State of New York, 65 AD3d 780 [3d Dept 2009] [late claim application denied even though defendant admitted no prejudice where conclusory allegations were not enough to show a meritorious cause of action]; Matter of Brown v State of New York, 6 AD3d 756 [3d Dept 2004] [late claim application denied where excuse was inadequate and proposed claim was of questionable merit]).
Accordingly, movant's late claim application is DENIED.
September 1, 2020
White Plains, New York
WALTER RIVERA
Judge of the Court of Claims