Rosario v State of New York

[*1] Rosario v State of New York 2005 NY Slip Op 50981(U) Decided on May 10, 2005 Court Of Claims Scuccimarra, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 10, 2005
Court of Claims

Carlos Rosario, Claimant,

against

State of New York, Defendant.



M-69064



Claimant's attorney:Koob & Magoolaghan

Defendant's attorney:Hon. Eliot Spitzer, New York State Attorney General

By: Barry Kaufman, Assistant Attorney General

Thomas H. Scuccimarra, J.

After carefully considering the papers submitted and the applicable law the motion is disposed of as follows:

Court of Claims Act §10(3) requires that a claim or Notice of Intention to file a Claim (hereafter NI) alleging negligence or other unintentional tort must be served and filed within ninety (90) days after accrual. If a NI is timely served, it may operate to toll this filing period an additional two years from the date of accrual. Remedies afforded to a Claimant for failing to meet these deadlines include consideration of timely and properly supported motions to have the Court treat duly served NI's as actual claims, or motions for permission to serve and file a late claim. Court of Claims Act §§10(8) and 10(6). These applications are an exercise of discretion on the part of the deciding Court.

In this case, Claimant has served (4) NIs since June 28, 2002 - all prepared and verified by counsel - but has never actually served and filed a claim. This motion seeking relief in the alternative was served on September 8, 2004.

Timeliness of Motion under Court of Claims Act §§10(8) and 10(6)

Court of Claims Act §10(8) provides in pertinent part that ". . . [t]he Court shall not grant . . . [an application for permission to treat the Notice of Intention as a claim] unless: it is made upon motion 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 notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant." Court of Claims Act §10(6) contains the same limiting language to the effect that a motion seeking permission to file a late claim must be brought before the underlying action would be time barred. Unlike the evaluation needed for a [*2]motion brought pursuant to Court of Claims Act §10(8), a late claim motion requires that Claimant establish the appearance of merit to the claim, among other things. Court of Claims Act §10(6).

For the purpose of the present motion, the Court must first determine the applicable statute of limitations for each viable cause of action, whatever label the claimant has assigned his claims, determine whether the motion is timely, and then review the more substantive aspects of the various alleged causes of action. Although it seems Claimant may be arguing - though it is not clear from the papers submitted - that it is his status as a paraplegic which is the medical condition for which he has received continuous treatment for the various related medical conditions, taking this view, as seductive as it appears at first blush, would allow a claimant to merely assert that a given medical problem has its genesis in an ongoing medical status to avoid timeliness problems when serving and filing a claim.

First Notice of Intention - served and verified June 28, 2002

The first NI [hereafter NI-1] alleges "violation of Claimant's right to equal protection, to due process and to not be subjected to cruel and unusual punishment and for personal injuries, both physical and psychological, and pain and suffering resulting from intentional and unintentional tortious acts of officers, employees, or agents of the New York State Department of Correction." [Affirmation in Support, Exhibit A]. The date of accrual alleged is "from January 23, 2002 through the present" - the NI is verified by Claimant's attorney on June 28, 2002 - and the underlying facts concerning alleged denial of adequate medical treatment for various medical conditions related to his paraplegic condition are set forth. [ibid. ¶3]. The NI was served personally on June 28, 2002. [Affirmation in Support, Exhibit F].

An action for medical malpractice must be brought "within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure . . ." Civil Practice Law and Rules §214-a. Negligence actions alleging personal injury must be brought within three (3) years, as should actions alleging State constitutional tort. Civil Practice Law and Rules §214(5).

Unless the continuous treatment doctrine applies with respect to the causes of action for medical malpractice, only those acts occurring ninety (90) days before June 28, 2002, or March 30, 2002, would be encompassed by NI-1.

Under the continuous treatment doctrine, the time in which to bring a malpractice action is stayed "when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint." Borgia v City of New York, 12 NY2d 151,155 (1962). The underlying principles behind the application of the doctrine are two-fold: first, it is in the patient's best interest to continue ongoing medical treatment and second, the initial medical practitioner is in the best position to identify and correct his own malpractice. See Nykorchuck v Henriques, 78 NY2d 255, 258-259 (1991); Toxey v State of New York, 279 AD2d 927, 928 (3d Dept 2001), lv denied 96 NY2d 711 (2001). Indeed, when a notice of intention is served - the "initiation of legal process" - any continued relationship of trust between doctor and patient is severed. Toxey v State of New York, supra, at 928-929.

Moreover, when the continuing treatment is provided by someone other than the allegedly negligent practitioner there must be an agency or other relevant relationship between the health [*3]care providers. Meath v Mishrick, 68 NY2d 992, 994 (1986); McDermott v Torre, 56 NY2d 399, 403 (1982). Common ownership of correctional facilities by the Defendant is insufficient to trigger the continuous treatment doctrine without more. Allende v New York City Health and Hospitals Corporation, 90 NY2d 333, 340 (1997).

As noted by the Assistant Attorney General, the doctrine has been found to be inapplicable to the lack of medical treatment. See Francis v State of New York, Claim No. 108347, Motion No. M-67697, (Lebous, J., December 22, 2003).

Claimant alleges generally that he suffers from multiple medical conditions related to his status as a paraplegic. In NI-1 Claimant sets forth several different medical conditions that were untreated or treated poorly. They must be dealt with separately, because the different dates and medical conditions asserted may require different resolutions.

The left wrist

Claimant's attorney alleges in NI-1 that "[s]ince his transfer to Fishkill on January 23, 2002, Mr. Rosario has complained of pain and numbness in his left hand." [Affirmation in Support, Exhibit A, ¶3(d)]. He seems to be averring that treatment for this condition commenced on March 6, 2002 with a "positive tinel's sign . . . in his left wrist, indicating carpal tunnel syndrome." [id.]. He continued to complain of swelling, numbness and/or pain through March and April 2002, and on May 16, 2002 a splint and an EMG test was directed by a consulting neurologist. [id.]. As of June 28, 2002 Claimant had not received the splint or the test. [id.]. Read as a cause of action alleging delay in medical treatment from Claimant's first complaints concerning his left wrist, it sounds in medical malpractice.

The Court finds that the continuous treatment doctrine does apply with regard to this cause of action, and the motion is timely, since it was brought marginally within 2 years and 6 months of the Claimant's last treatment. According to the facts alleged, the last treatment concerning the left wrist was on May 16, 2002.

Bladder spasms-failure to provide medication

Claimant alleges in NI-1 that on February 22, 2002 a consulting urologist recommended a prescription of Pro-Banthine to relieve Claimant's bladder spasms. [Affirmation in Support, Exhibit A, ¶ 3 (h)]. Medication was not provided until April 17, 2002. [id.]. Based upon the indication that medication was provided i.e., treatment was provided on April 17, 2002, the motion is timely.

Right hand finger numbness

Claimant alleges in NI-1 that "[i]n March, 2002 . . . [he complained of] pain and numbness in a finger on his right hand" to State employees but has yet to be treated for this problem.

The motion to treat the NI as a claim is not timely for this cause of action, nor is it timely for late claim purposes, as there is not even any indication of when treatment was commenced or ended, to even measure whether the motion is brought within 2 years and 6 months of the last date of treatment.

Back pain

Claimant alleges in NI-1 that on March 9, 2002 he "informed Dr. Ellen of his back pain. The doctor ignored his complaints and continued to prescribe Tylenol, even though . . . [*4][Claimant] informed the doctor that it was ineffective." [Affirmation in Support, Exhibit A, ¶ 3(f)].

The motion is timely for this cause of action with respect to the motion to treat the NI as a claim and the motion for permission to serve and file a late claim, since it is brought within 2 years and 6 months of the last date of treatment.

Urinary Tract Infection (UTI) - March 26, 2002 complaint

Claimant alleges in NI-1 that he was suffering from painful symptoms on March 26, 2002 and submitted a urine sample on that date. He further alleges that after the results came back on March 29, 2002 showing that he was suffering from an infection, " . . . Dr. Ellen refused to medicate him." [Affirmation in Support, Exhibit A, ¶3(a)]. He did receive treatment through the regional medical director on April 8, 2002. [id.].

Using either date, the motion is timely for both purposes, since it was made within 2 years and 6 months of both March 29, 2002 and April 8, 2002.

UTI - April 25, 2002 complaint

Claimant alleges in NI-1 that he first complained to nurses of UTI symptoms on April 25, 2002, and later described his symptoms to Dr. Ellen as well. No urine specimen was ordered immediately. [Affirmation in Support, Exhibit A, ¶3(b)]. While he continued to complain, he was ultimately tested on May 13, 2002. [id.]. When the results came back on May 20, 2002 showing he was suffering from a UTI , an antibiotic was prescribed that turned out to be ineffective, and he was taken to an outside hospital for treatment. [id.].

The motion is timely for both purposes, since it was made within 2 years and 6 months of May 20, 2002 when treatment was prescribed by a State agent.

Leg spasms - April 19, 2002 complaint

With respect to this cause of action, Claimant alleges in NI-1 that he complained of painful leg spasms on April 19, 2002, and was sent to an outside neurologist on May 16, 2002 who prescribed Baclofen. [Affirmation in Support, Exhibit A, ¶ 3(c)]. ". . . Defendant's agents refused to prescribe the medication for him until the neurologist recommended it again in June, 2002. When [Claimant] was finally given the medication on June 22, 2002, the dosage given was significantly higher than the amount prescribed by the neurologist, which caused him to experience a number of adverse side effects . . .", including falls from his wheelchair, and injury to his ankle, back, neck and right leg. [id.].

The motion is timely for both purposes, since it was made within 2 years and 6 months of June 22, 2002 when treatment was prescribed by a State agent.

Medical Equipment

Claimant alleges in NI-1 with regard to the alleged deprivation of necessary medical equipment that in January, 2002 he requested a shower chair but did not receive it until June, 19, 2002; that his leg brace broke in "early April, 2002" but was not replaced; that a consulting physiatrist recommend a "jay-cushion and new wheelchair" on March 6, 2002 that he has not received; and that he has not received the splint for his left wrist - referred to above - that was ordered on May, 16, 2002. [Affirmation in Support, Exhibit A, ¶ 3(i)].

Couched as either medical malpractice or negligence causes of action, the motion is timely for these causes of action for both late claim purposes, and as motion to treat the notice of intention as a claim. [*5]

Denial of Physical Therapy; Failure to provide medication and dietary needs;

Failure to maintain records

Claimant alleges generally in NI-1 that he has not been provided with physical therapy or exercise equipment [Affirmation in Support, Exhibit A, ¶3(g)]; that since January 2002 he has not received prescriptions for vitamin C, or cranberry juice [id. ¶3(j)]; and that medical personnel have not kept accurate records. [id. ¶ 3(k)].

The motion to treat the NI as a claim is not timely for this cause of action, nor is it timely for late claim purposes, as there is not even any indication of when treatment was commenced or ended, to even measure whether the motion is brought within 2 years and 6 months of the last date of treatment, or within 3 years of any act of negligence.

Constitutional Rights

Finally, any assertion that a constitutional tort remedy [FN1] may apply is not supported beyond the sweeping statements at the beginning and end of NI-1, nor can it be ascertained from the papers whether the motion is timely. A constitutional tort cause of action is subject to the three year limitations period provided in Civil Practice Law and Rules 214 (5). Brown v State of New York, 250 AD2d 314, 317-318 (3d Dept 1998). Since Claimant's attorney does not set forth facts that might allow the Court to determine accrual dates, the Court cannot ascertain whether the motion is timely or whether the NI was served on a timely basis.

Second Notice of Intention [FN2] - verified September 27, 2002

This NI, hereinafter referred to as NI-2, picks up with allegations of medical malpractice distinct from and commencing - presumably - after the previous NI was served. NI-2 again recites generally that from January 23, 2002 through the present Claimant has been denied adequate medical treatment while in DOCS custody.

Kidney Pain - UTI

Claimant alleges in NI-2 that on June 28, 2002 he complained of kidney pain to medical personnel, as well as on several subsequent occasions, was prescribed Tylenol for the pain on July 3, 2002 and, although he submitted urine samples, was not directed to submit a sample for testing by Dr. Ellen until July 15, 2002, and was sent to St. Agnes Hospital later that day suffering from a fever among other ailments. [Affirmation in Support, Exhibit C, ¶3 (A)]. He alleges that Fishkill staff were negligent in monitoring his case. [id.]. He asserts that a course of antibiotic treatment for a UTI had ended on June 7, 2002, and that Dr. Ellen did not write a follow-up order at that time. [id.]. "Because of Dr. Ellen's failure to order a urine culture and sensitivity on June 7, 2002, [Claimant] does not know if the earlier [UTI] had cleared up, or if the current [UTI] was the same infection for which he was treated in May through June 2002." [id.]. [*6]

As a medical malpractice cause of action, measured from a last treatment date of July 15, 2002, the motion is timely for this causes of action for both late claim purposes, and as a motion to treat the notice of intention as a claim.

Kidney pain

Claimant alleges in NI-2 with respect to treatment for complaints of kidney pain commencing on August 11, 2002 through August 19, 2002, that although he requested and received prescribed "PRN Roboxin medication for the kidney pain he was experiencing" the medication did not work, and he continued to be in pain and to urinate "cloudy urine." [Affirmation in Support, Exhibit C, ¶ 3(B)]. When the results of a urine sample test arrived on August 22, 2002, he was prescribed an antibiotic, that was not available until August 23, 2002. [id.]. Throughout the period he was taking the antibiotic he continued to experience pain, and eliminate cloudy urine. [id.]. He also suffered from fever and chills. [id.]. When blood was found in his urine on September 3, 2002, he was sent to St. Agnes Hospital for treatment, and was ultimately released from the hospital back to Fishkill on September 7, 2002. [id.]. He asserts that medical personnel displayed deliberate indifference to his medical needs, and failed to timely prescribe appropriate tests. [id.].

Measured from the last date of treatment by medical personnel at Fishkill on September 3, 2002 for this cause of action in NI-2, the motion is timely since it is made within 2 years and 6 months.

UTI - St. Agnes Hospital

Claimant alleges in NI-2 with respect to his treatment for various UTIs while hospitalized in St. Agnes Hospital in May, June, July, August and September 4, 2002, that he was denied the use of handicap accessible bathroom facilities, including the use of a handicap accessible shower as well as handicap accessible toilet equipment. [Affirmation in Support, Exhibit C, ¶ 3(C). The earliest date alleged in this portion of NI-2 is May 23, 2002, and the latest date is September 7, 2002. [id.].

Assuming for the sake of argument that this portion of NI-2 recites facts leading to a cause of action against the State of New York, the motion is timely since it is made within 2 years and 6 months.

Failure to maintain records

Claimant alleges generally in NI-2 with respect to this cause of action that medical personnel at Fishkill have not kept accurate records. [Affirmation in Support, Exhibit C, ¶ 3(D)]. No dates for these failures are asserted except the same general allegation that medical personnel have failed to keep accurate records since his incarceration at Fishkill, and limited to "claims which arose on or after June 28, 2002." [ibid. ¶ 3].

The motion - premised upon the June 28, 2002 date - is timely.

Constitutional Rights

The same determination as that made above concerning NI-1 - that the conclusory assertion of a violation of constitutional rights without more does not allow the Court to even ascertain whether the motion is timely - maintains with respect to NI-2. ] [*7]

Third Notice of Intention [FN3] - verified October 1, 2002

This NI, hereinafter referred to as NI-3, picks up with allegations of medical malpractice distinct from and commencing - presumably - after the previous NI-2 was served on October 1, 2002. [Affirmation in Support, Exhibit B]. NI-3 again recites generally that from January 23, 2002 through the present Claimant has been denied adequate medical treatment while in DOCS custody at Fishkill.

Back pain

This portion of NI-3 appears to be an attempt to add to the information already provided in NI-1 concerning Dr. Ellen's alleged failure to treat Claimant's back pain properly. [Affirmation in Support, Exhibit B, ¶3(A)]. Here the last date of treatment by Dr. Ellen alleged is August 23, 2002. [id.]. From March 20, 2002, when Claimant alleges he advised Defendant that the Tylenol medication prescribed was not working for his back pain, until August 23, 2002, Dr. Ellen prescribed medication, physical therapy, and sent Claimant to an outside neurologist. [id.].

The motion, therefore is timely with respect to both purposes, having been served within 2 years and 6 months of the last treatment for a medical condition.

Medical equipment - Jay cushion

This is the same allegation as that contained in NI-1 concerning the recommendation by a physiatrist that Claimant's wheelchair cushion be replaced, and the alleged failure to provide it. [Affirmation in Support, Exhibit B, ¶ 3(B)]. He apparently received the new Jay cushion on September 9, 2002, but had developed pressure sores on his buttocks in the interim between its having been recommended, and its receipt. [id.].

The motion, therefore is timely with respect to both purposes, having been served within 2 years and 6 months of the last treatment for a medical condition.

Constitutional Rights

The same determination as that made above concerning NI-1 and NI-2 - that the conclusory assertion of a violation of constitutional rights without more does not allow the Court to even ascertain whether the motion is timely - maintains with respect to NI-3.

Fourth Notice of Intention - verified November 6, 2003 [FN4]

This NI, hereinafter referred to as NI-4, picks up with allegations of medical malpractice distinct from and commencing - presumably - after the previous NI-3 was served on October 3, 2002. [Affirmation in Support, Exhibit D]. NI-4 again recites generally that from January 23, 2002 through the present Claimant has been denied adequate medical treatment while in DOCS custody at Fishkill. [ibid. ¶3].

Right hand and wrist

Claimant alleges that he again complained of pain in his left hand and wrist that he indicates are symptoms of carpal tunnel syndrome commencing in November, 2002, and although he was not examined or treated, the pain subsided. [Affirmation in Support, Exhibit D, [*8]¶ 3 (A)]. In June 2003 he indicates that he complained of "recurrent symptoms of Carpal Tunnel Syndrome in his right hand and fingers." [id.]. He was seen by State physicians for these complaints on July 7, 2003 and August 1, 2003. [id.]. On the last occasion, it was determined that no medical intervention was required. [id.]. He asserts that he sustained an injury to his scrotum on September 4, 2003 because he was not treated for his right hand carpal tunnel syndrome. [id.].

When he was at St. Agnes Hospital for an unrelated medical problem on September 8, 2003, a surgeon there examined his right hand and "recommended an EMG procedure and a splint for claimant's right hand." [id.]. When he returned to the facility, physicians there "refused to direct the recommended treatment or follow up . . ." [id.]. Thereafter, and on September 22, 2003 the facility physician directed the EMG test, and advised Claimant on October 20, 2003 after the results arrived that the "test showed severe nerve damage to the right wrist." [id.]. It appears that pain medication was prescribed but no splint or other device was forthcoming. [id.].

The motion, therefore is timely with respect to both purposes, having been served within 2 years and 6 months of the last treatment for a medical condition by State personnel on October 20, 2003.

Bladder cancer

Claimant alleges in connection with this cause of action that "In 2002 [he] was diagnosed as having bladder cancer and underwent surgery for removal of the cancer tumor. After surgery, claimant was advised that he would require one year of monthly chemotherapy in order to eradicate the disease . . ." [Affirmation in Support, Exhibit D, ¶ 3(B)]. All treatments appear to have been prescribed and given at St. Agnes Hospital. He alleges that there was a break in treatment so as not to conflict with other tests he had to take for unrelated medical conditions, but that after treatments were suspended in May 2003 they were to recommence in June 2003 but did not. [id.]. He claims that defendant has failed to contact those necessary to recommence treatment. [id.]. He states that the "lack of treatment places claimant at grave risk of recurrence of his bladder cancer and has caused him great anxiety and mental distress." [id].

The motion is untimely as to both purposes, since it cannot be ascertained when, if at all, any cause of action accrued against the State of New York.

UTI - July 27, 2003 complaint

Claimant alleges in NI-4 that he first complained of kidney pain to medical personnel on July 25, 2003, and although he saw nurses and other medical staff he did not see a physician until July 31, 2003. [Affirmation in Support, Exhibit D, ¶3(C)]. Lab results from his urine sample were returned to the facility on August 8, 2003, and on August 11, 2003 the results were interpreted and Claimant received treatment for another UTI.

Using the last date of treatment alleged, August 11, 2003, the motion is timely for both purposes.

Constitutional Rights

The same determination as that made above concerning NI-1, NI-2 and NI-3 - that the conclusory assertion of a violation of constitutional rights without more does not allow the Court to even ascertain whether the motion is timely - maintains with respect to NI-4.

Motion to treat NI-1, NI-2, NI-3, and NI-4 as Claims

Assuming for the purpose of Claimant's motion to treat the four NI's served as claims that [*9]they were timely served, all suffer generally from sweeping statements offered to encompass time periods where it is likely that Claimant was asymptomatic and hence not necessarily receiving treatment for a given medical condition. What conduct was undertaken or what medical treatment was provided, how that conduct deviated from accepted medical practices, and how any deviation from such accepted practices proximately caused Claimant injury is not set forth with clarity in any of the NIs prepared and verified by Counsel.

After carefully reviewing NI-1 with regard to the causes of action concerning the left wrist, bladder spasms, and back pain, the Court denies the motion to treat the Notice of Intention as a claim and finds that although there are dates provided, they are not particularly specific as to what particular actions or inactions were involved on a given date, or how the State's agents did not render adequate medical care on a date recited. The motion to treat NI-1 for these causes of action as a claim is also denied because the information provided in the NI does not comply with the statutory requirements for the contents of a claim, in that it does not contain the specific ". . . items of damage or injuries claimed to have been sustained and the total sum claimed." See Court of Claims Act §11 (b). Similarly, with respect to the series of UTIs Claimant alleges were untreated, the leg spasms, and the causes of action concerning alleged delays in providing medical equipment, such as shower chairs, a leg brace and a Jay cushion, the motion to treat NI-1 as a claim for these causes of action, is denied because the information provided in the NI does not comply with the statutory requirements for the contents of a claim, in that it does not contain, among other things, the specific ". . . items of damage or injuries claimed to have been sustained and the total sum claimed." See Court of Claims Act §11 (b).

With respect to NI-2, the motion to treat NI-2 as a claim for the various causes of action, including untreated kidney pain and UTIs, and failure to maintain medical records is denied because the information provided in the NI does not comply with the statutory requirements for the contents of a claim, in that it does not contain, among other things, a description of how the State of New York - through its agents - was negligent, or the specific ". . . items of damage or injuries claimed to have been sustained and the total sum claimed." See Court of Claims Act §11 (b).

NI-3 suffers from similar infirmities. The motion to treat NI-3 as a claim for causes of action alleging untreated back pain and denial or delay of medical equipment is denied because the information provided in the NI does not comply with the statutory requirements for the contents of a claim, in that it does not contain, among other things, a description of how the Defendant's agents were negligent, or the specific ". . . items of damage or injuries claimed to have been sustained and the total sum claimed." See Court of Claims Act §11 (b).

Finally, NI-4 cannot be treated as a claim either. The motion to treat NI-4 as a claim for the causes of action asserted, including improper treatment for carpal tunnel syndrome for the right hand and wrist, bladder cancer, and delays in treatment for UTI, is denied because the information provided in the NI does not comply with the statutory requirements for the contents of a claim, in that it does not contain, among other things, a description of how the Defendant's agents were negligent, or the specific "...items of damage or injuries claimed to have been sustained and the total sum claimed." See Court of Claims Act §11 (b).

Motion for Permission to Serve and File a Late Claim

In order to determine an application for permission to serve and file a late claim, the [*10]Court must consider, "among other factors," the six factors set forth in §10(6) of the Court of Claims Act. The factors stated therein are: (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 meritorious; (5) whether substantial prejudice resulted from the failure to timely serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim. See e.g. Matter of Gavigan v State of New York, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any particular factor is not dispositive Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New York, 288 AD2d 172 (2d Dept 2001).

The only explanation offered for the failure by Claimant - or the failure by Counsel for Claimant - to timely serve and file a claim or claims on Claimant's behalf, is that his claims are "complex and numerous . . . [and it] required several months for Mr. Rosario to accumulate and organize the necessary records, and present this information to counsel for drafting of the Claim." [Affirmation in Support, ¶46]. This is not a legally acceptable excuse. Accordingly, this factor weighs against Claimant, because no legally acceptable excuse has been presented for the two (2) year or more delay in serving and filing a claim.

The absence of an excuse, however, is but one of the factors to be considered, and does not necessarily preclude relief. Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, supra.

The closely related factors of notice, opportunity to investigate and prejudice to the State, considered together, weigh toward granting Claimant's motion. Whatever inadequacies there may be in the NIs served upon Defendant, the State has been made aware of the likelihood of suit concerning Claimant's medical treatment, and on the whole would be able to investigate the medical records maintained at its facility and evaluate its defense if necessary.

With respect to alternative remedies, any cause of action based upon a violation of the Federal Constitution should be pursued pursuant to 42 USC §1983. No cause of action against the State of New York exists for alleged violations of an individual's rights under the United States Constitution [See Welch v State of New York, 286 AD2d 496, 498 (2d Dept 2001); Zagarella v State of New York, 149 AD2d 503 (2d Dept 1989; Davis v State of New York, 124 AD2d 420, 423 (3d Dept 1986)], in that the State is not a "person" amenable to suit pursuant to 42 USC §1983. Actions alleging violations of the New York State Human Rights Law, Executive Law §297, can be brought in New York State Supreme Court. Thus, although alternative remedies are available for some portions of the Claim, others may not be pursued elsewhere.

The proposed claim is annexed as Claimant's Exhibit E to Counsel's Affirmation in Support. It is verified by Counsel for Claimant.

A claim appears to be "meritorious" within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates that there is reasonable cause to believe that a valid. cause of action exists. Matter of Santana v New York State Thruway Auth, 92 Misc 2d 1 (Ct Cl 1977). Claimant need not establish a prima facie [*11]case at this point, but rather the appearance of merit. Witko v State of New York, 212 AD2d 889, 891 (3d Dept 1995). The Court notes that Claimant is not entitled to have ". . . pre-claim discovery . . . to ascertain whether facts supporting a cause of action actually exist . . . (citations omitted)." Edens v State of New York, 259 AD2d 729, 730.

Significantly, when the proposed claim asserts a cause of action requiring an expert opinion in order to be established, an affidavit of merit from a qualified expert should be included with the application. Perez v State of New York, 293 AD2d 918 (3d Dept 2002)[FN5]; Schreck v State of New York, 81 AD2d 882 (2d Dept 1981)[FN6]; Nyberg v State of New York, 154 Misc 2d 199,202 (Ct Cl 1992)[FN7]; Favicchio v State of New York, 144 Misc 2d 212, 214 (Ct Cl 1989)[FN8]; Jolley v State of New York, 106 Misc 2d 550, 551-552 (Ct Cl 1980)[FN9]; But cf. DePaolo v State of New York, 99 AD2d 762 (2d Dept 1984).[FN10]

In a medical malpractice claim, the Claimant has the burden of proof and must prove (1) a deviation or departure from accepted practice and (2) evidence that such deviation was the proximate cause of the injury or other damage. A cause of action is premised in medical malpractice when it is the medical treatment, or the lack of it, that is in issue. A Claimant must establish that the medical care giver either did not possess or did not use reasonable care or best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field. The "'claimant must [demonstrate] . . . that the physician deviated from accepted medical [*12]practice and that the alleged deviation proximately caused his . . . injuries' (Parker v State of New York , 242 AD2d 785, 786)." Auger v State of New York, 263 AD2d 929, 931 (3d Dept 1999). Without such medical proof, no viable claim giving rise to liability on the part of the State can be sustained. Hale v State of New York, 53 AD2d 1025 (4th Dept.1976), lv denied, 40 NY2d 804 (1976). A medical expert's testimony is necessary to establish, at a minimum, the standard of care. Spensieri v Lasky, 94 NY2d 231 (1999).

In this case, when the Claimant's initial application - containing only Counsel's affirmation and the successive NIs verified by Counsel, as well as a Declaration Regarding Certificate of Merit signed by counsel indicating she did not have Claimant's "complete medical records" - was opposed by Defendant, Defendant indicated, correctly, that any cause of action for medical malpractice would not lie without an Affidavit of Merit from a qualified physician or other medical expert. [Affirmation in Opposition, ¶ 8].

In Reply papers, Claimant's attorney has now appended a three (3) page letter from Jeffrey Perry, D.O., dated December 10, 2004, directed to Claimant's attorney, as well as Dr. Perry's resume. [See Reply Affirmation, Exhibits A and B]. In the letter, Dr. Perry indicates that he has reviewed records and "based upon the review of records, there was a 'deliberate indifference to a serious medical problem' with respect to services rendered to Carlos Rosario." [ibid. Exhibit A]. The "records" he indicates he has reviewed are ". . . [a] claim from Carlos Rosario against the State of New York [and a] chronology report which appears to be written by Carlos Rosario with respect to a carpal tunnel syndrome, as well as a urinary tract infection." [id.]. He writes that between January 23, 2002 and April 13, 2004 Claimant complained of hand and wrist pain, leg pain, urinary tract infections, and denial of durable medical equipment Claimant utilized. [id.]. Dr. Perry then gives a description of the kinds of medical conditions or complications a reasonable medical practitioner should know how to address or anticipate in spinal chord injury patients, and recounts that from the information provided proper care was not given to this Claimant. [id.].

Accepting Claimant's version of events as true for the purposes of the motion, the proposed claim has the appearance of merit sufficient to allow Claimant to serve and file a late claim with respect to the various instances of alleged medical malpractice and/or medical negligence in the form of delayed treatment for Claimant's multiple medical conditions resulting from his primary medical status as a paraplegic. The Court is not unmindful of the thin basis for the medical expert's opinion, premised as it appears to be upon only Claimant's recitation of his medical history, as opposed to review of actual medical records. Certainly, at any trial of this Claim such an opinion would not suffice. Nonetheless, there is reasonable cause to believe that a valid cause of action exists based upon the presentation.

With respect to any claims of discrimination, or supposed violation of the New York State Human Rights Law [Article 15, Executive Law], or the broad assertion of constitutional violations, as stated earlier, no facts are even alleged to make out such claims.

Accordingly, Claimant's motion for permission to serve and file a late claim is hereby granted with respect to the medical malpractice and/or medical negligence causes of action contained in the proposed Claim annexed as Exhibit E. Claimant is directed to serve his claim upon the Attorney General, and to file a Claim similar to the proposed Claim, except with references to anything other than medical malpractice or medical negligence deleted, as well as [*13]references to medical conditions the Court has already indicated were not raised in a timely motion, and with properly numbered paragraphs and separately stated causes of action, with the Chief Clerk of the Court of Claims within forty-five (45) days from the date of filing of this decision and order in the Clerk's Office, with such service and filing to be in accordance with the Court of Claims Act, with particular reference to §§ 10, 11 and 11-a, and the Uniform Rules for the Court of Claims.

Appendices: Footnotes

Footnote 1: "A constitutional tort is any action for damages for violation of a constitutional right against a government or individual defendants." Brown v State of New York,89 NY2d 172 (1996).

Footnote 2: For reasons apparent only to Counsel for Claimant, the NI referred to here that was served on October 1, 2002 is identified as the Third Notice of Intention, and the NI served on October 3, 2002 is identified as the Second Notice of Intention. For the sake of clarity, the Court has addressed the NI's in the order in which they were served.

Footnote 3: As noted earlier, the Court is addressing the NI's herein in the order served. NI-3 was served October 3, 2002. Claimant's attorney has entitled NI-3 "Supplemental Notice of Intention to File a Claim." There does not appear to be provision for such a document in the Court of Claims Act.

Footnote 4:NI-4 was served on November 7, 2003.

Footnote 5: No expert medical opinion offered to establish the merit of claims of misdiagnosed medical condition as well as improper treatment.

Footnote 6: Court of Claims abused discretion in allowing late claim to be filed in claim alleging medical malpractice where no affidavit by medical expert causally linking birth of brain damaged child to asserted malpractice submitted.

Footnote 7: Need opinion by qualified person to establish appearance of merit in claim alleging negligence based upon the absence of a highway median; late claim applicant has higher burden than one who has timely filed a claim.

Footnote 8: Opinion by medical expert without underlying basis for it - in this case the medical records the physician indicated he had reviewed - insufficient to establish appearance of merit in late claim motion.

Footnote 9: An attorney's affirmation by one experienced in medical malpractice litigation is not competent to establish the appearance of merit in application to file late claim alleging medical malpractice. Court did not rely on any other late claim factors in making determination to deny motion.

Footnote 10: Denial of inmate's motion to file late claim abuse of discretion where medical records furnished established that he suffered from the medical conditions that the Motrin packaging literature advised precluded prescription of the drug, in a claim alleging medical malpractice based upon physician's allegedly improper direction that inmate take Motrin. No medical affidavit needed to be furnished under these circumstances.