The following papers were read on claimant's application for permission to file
a late claim pursuant to Court of Claims Act §10(6): Notice of Motion,
Affidavit and Exhibits annexed; Affirmation in Opposition.
The claimant seeks permission to file a late claim alleging negligent
supervision by the defendant of a physician
who improperly interpreted the results of a mammogram and a sonogram in the
spring of 1999. According to the claimant's submission, these procedures were
performed under the auspices of a New York State Health Department program under
which the physician, among others, was reimbursed by the State for performing
such services for women without health insurance. The proposed claim alleges
that the results were reported to her as "no evidence of malignancy."
Approximately a year later, according to claimant's submission, she was
diagnosed with breast cancer. Shortly thereafter, the claimant was notified by
the New York State Department of Health that she "may not have received a
complete breast exam" at the physician's office, and was advised "to come back
for a complete breast examination." Exhibit D to claimant's submission, letter
dated May 25, 2000. Upon subsequent review of the 1999 examinations, the
results were reported as: "Malignancy cannot be excluded. Further evaluation is
advised." Exhibit C to claimant's submission, dated May 30, 2000. The
claimant's submission indicates that the defendant suspended the physician's
license at about the same time.
Although the 90-day period to serve and file a claim or to serve a notice of
intention has lapsed, Court of Claims Act §10(3), this application was
filed within the relevant statute of limitation so the Court has jurisdiction to
grant relief under §10(6), and has considered the factors listed therein.
See, Bay Terrace Cooperative Section IV, Inc. v New York State Employees'
Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979,
Under the circumstances, the delay in filing the claim, which the claimant
attributes to not being notified by the State of any problem with the
examinations until a year later, is excusable.
Although the defendant asserts that it has been prejudiced by not having an
opportunity to investigate the circumstances underlying the claim, it seems
clear that it was the defendant who first had notice of the essential facts
constituting any potential claim, and did in fact investigate.
The claimant appears to recognize that she has another available remedy,
against the individual physician
The principal basis for the defendant's opposition to the application is that
the claim does not appear to be meritorious because, it is argued, the defendant
is not vicariously liable for the actions of the physician, who was neither its
employee nor its agent. Indeed, the claimant's submission predicates liability
solely on the fact that the defendant sponsored and funded the program which
provided for the examinations. In the absence of any submission by the
defendant of specific factual information concerning the nature of the
relationship between the physician and the defendant, the alleged involvement of
the defendant, as indicated in documents annexed as Exhibit B to the
application, sufficiently demonstrates the appearance of merit at this
Having considered the relevant statutory factors, Bay Terrace, supra,
the balance of factors weigh in claimant's favor. It is therefore,
ORDERED, that claimant's application for permission to file a late claim
against the State of New York is granted; claimant shall file the proposed claim
in the form in which it is annexed to the application as Exhibit A in accordance
with the provisions of Court of Claims Act §§ 11 and 11-a and Rule
206.5 of the Uniform Rules for the Court of Claims, and serve it, in accordance
with the provisions of Court of Claims Act §11, either personally or by
certified mail return receipt requested, upon the Attorney General, within 45
days of the date of the filing of this Order.