The following papers were read on the claimant's application for permission to
file a late claim, and for an order directing the production of certain records:
Notice of Motion, Affirmation in Support and Exhibits annexed; Affirmation in
Opposition; Reply Affirmation.
According to her submission, the claimant was a patient at Downstate Medical
Center from October 3, 2000 through December 13, 2000, having been admitted for
the purpose of eye surgery. At approximately 4:00 A.M. on October 11, 2000, she
fell when she went to the bathroom, as a result of which she fractured her hip.
The gravamen of her proposed claim alleging medical malpractice is that her
injury was caused by the failure of the defendant to provide her with assistance
in going to the bathroom.
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,
The claimant's excuse for the delay in filing the claim is that she remained
bedridden after her discharge from the hospital. According to her Affidavit,
she is 75 years old and lives alone. In any event, this application was filed
within 90 days from her discharge from the hospital, and a little more than a
month beyond 90 days after her fall. Upon the circumstances presented by the
claimant, the delay in filing the claim was excusable.
In the absence of any opposition by the defendant on the basis of the statutory
factors of opportunity to investigate or prejudice caused by the delay, or of
specific factual support for its opposition with respect to the statutory factor
of notice, those factors are presumed to weigh in the claimant's favor. See,
Calzada v State of New York, 121 AD2d 988; Cole v State of New York, 64 AD2d
1023, 1024. Under the circumstances, the defendant would have been aware
of the incident and had ample reason to investigate it.
The defendant opposes the application on the ground that the claim does not
appear to be meritorious, because the claimant has not submitted an affidavit
from a medical expert. Schreck v State of New York, 81 AD2d 882. The
claimant's allegation that the defendant did not provide proper assistance for
her to get to the bathroom is predicated upon her medical condition at the time
of the incident. As such, the merit of the proposed claim cannot be assessed in
the absence of an expert's opinion of the appropriate standard of care.
The failure to demonstrate that a proposed claim appears to be meritorious
weighs heavily against granting permission to file a late claim. McCarthy v
New York State Canal Corporation, 244 AD2d 57; Klingler v State of New
York, 213 AD2d 378; Savino v State of New York, 199 AD2d 254;
Prusack v State of New York, 117 AD2d 729.
Neither side has addressed whether the claimant has any other available
Having considered the relevant statutory factors, Bay Terrace, supra,
the application for permission to file a late claim is denied, with leave to
renew upon submission of an application which includes an expert affidavit.
Upon renewal, counsel for the claimant is advised to delete from the proposed
claim those allegations which are unrelated to a claim for medical malpractice,
unless the application includes support for them.
With respect to that portion of the claimant's motion seeking the production of
certain records, the defendant has indicated that some of the records are
available upon payment of a fee, and has opposed production of others. In the
absence of any support by the claimant for the relief requested, that portion of
the motion is denied.