New York State Court of Claims

New York State Court of Claims

AMILL v. THE STATE OF NEW YORK, #2000-014-533, , Motion No. M-61974


Synopsis


Application for permission to file a late claim is granted.

Case Information

UID:
2000-014-533
Claimant(s):
ALMA AMILL
Claimant short name:
AMILL
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-61974
Cross-motion number(s):

Judge:
S. Michael Nadel
Claimant's attorney:
Collopy & Carlucci, P.C.By: Alice F. Collopy
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Gwendolyn Hatcher, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 27, 2000
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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[1] 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, 981.

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 stage.

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.


November 27, 2000
New York, New York

HON. S. MICHAEL NADEL
Judge of the Court of Claims




[1]
Although the application, and the proposed claim, mentions the names of two physicians, the pertinent procedures appear to have been provided by only one. The involvement of the second physician is unclear.