New York State Court of Claims

New York State Court of Claims

TRUDEAU v. THE STATE OF NEW YORK, #2000-018-018, Claim No. 101773, Motion No. M-61278


Synopsis


Claimant timely served a notice of intention upon the Attorney General by regular mail and filed a claim less than three months later with the Clerk of the Court. Claimant also served a copy of the claim upon the Attorney General by regular mail. Claimant brought this late claim application as a result of the improper service of the notice of intention and claim. Court granted the motion.

Case Information

UID:
2000-018-018
Claimant(s):
STEVEN TRUDEAU
Claimant short name:
TRUDEAU
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101773
Motion number(s):
M-61278
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
COTE and LIMPERTBy: JOSEPH S. COTE, III, ESQUIRE
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
Third-party defendant's attorney:

Signature date:
May 26, 2000
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The Court has reviewed and considered the following papers on claimant's application for permission to file a late claim:

Notice of Motion..........................................................................................................1

Affidavit of Joseph S. Cote, Esquire. with all exhibits attached thereto......................2

No opposition papers have been received by defendant.

Claimant brings this motion seeking permission to file a late claim as a result of the failure to properly serve a Notice of Intention and claim upon the Attorney General. The claim arises from injuries claimant allegedly sustained as a result of a laparotomy sponge and/or surgical gauze being left in his abdomen during surgery at the State of New York Health Science Center (hereinafter, SUNY) on July 10, 1999. On September 2, 1999 after suffering abdominal pain, and drainage, a CT scan was performed which revealed the presence of a foreign object in claimant's abdomen. On September 14, 1999 claimant underwent surgery to remove the foreign object.

Claimant served a notice of intention upon the Attorney General's Office on October 15, 1999 by regular mail. On January 14, 2000 claimant filed a verified claim with the Clerk of the Court and served the Attorney General with a copy of the claim by regular mail. Claimant was advised of the improper service the first week in February and filed this motion with the clerk's office on February 25, 2000.

Court of Claims Act §10(6) allows a claimant who has failed to properly serve a notice of intention or who has failed to file and properly serve a claim within the time frame set forth in Court of Claims Act §10 to make an application to the Court to file such a claim, in the discretion of the Court, at any time before an action asserting a like claim against a citizen of the state would be barred under article two of the CPLR. (Court of Claims Act §10(6).) Claimant's motion is timely. (Court of Claims Act §10(6); CPLR §214(a).)

To determine whether an application for permission to file a late claim should be granted, consideration must be given to the six factors listed in Court of Claims Act §10(6), and any other relevant factors. The presence or absence of any one factor is not determinative. (Bay Terrace Cooperative Section IV, Inc. v New York State Employees' Retirement System, Policemen's and Firemen's Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965.) Instead it is a balancing of all of the factors by the Court which may warrant the granting of the application to file and serve a late claim.

The first factor is whether the delay in filing the claim is excusable. Claimant mailed by regular mail a notice of intention upon the Attorney General within 90 days from the date he discovered the presence of the foreign object in his abdomen. A claim was then filed late as a result of the improper service of the notice of intention. The delay in filing the claim is not excusable, however this is only one factor considered in the determination of this motion.

The factors of whether the State had notice of the essential facts, an opportunity to investigate the underlying claim, and whether the State will suffer substantial prejudice if the late filing and serving of the claim are permitted will all be addressed together. Claimant attaches to his motion a copy of the notice of intention which was served upon the Attorney General, although improperly, less than four months after the surgery in which it is alleged the sponge or surgical gauze was left in claimant. The notice of intention adequately apprizes defendant of the substance of claimant's allegations and provided an opportunity for defendant to timely investigate the matter. As a result no prejudice will result to defendant from allowing claimant to file a late claim.

The next factor, whether the claim appears to be meritorious, is often referred to as the most essential factor. Generally a proposed claim meets this standard if it is not patently groundless, frivolous or legally defective, and upon consideration of the entire record, there is cause to believe that a valid cause of action exists. (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1,11). The operative report attached to claimant's motion clearly establishes that there is cause to believe a valid cause of action exists. ( Exhibit B)

The final factor is whether the claimant has any other available remedy. Claimant did not address this issue. As a result this factor weighs against the claimant.

Accordingly, upon balancing all of the factors in Court of Claims Act §10(6), this Court GRANTS the claimant's motion to permit the late filing and serving of the claim. Claimant is directed to file and serve the proposed claim (Exhibit F) within thirty (30) days of receipt of a file-stamped copy of this decision and order. Service and filing of the claim shall be in conformity with all applicable statutes and court rules.




May 26, 2000
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims