New York State Court of Claims

New York State Court of Claims

JOHNSON v. STATE OF NEW YORK, #2001-018-057, Claim No. NONE, Motion No. M-62190


Court denied late claim application. Movant alleged a foreign body was left in her breast during surgery; however, offered no documentation that a foreign body was actually found in the breast.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Jeff DeFrancisco, EsquireSTANLEY LAW OFFICES
Defendant's attorney:
Attorney General of the State of New York
By: PATRICIA M. BORDONARO, ESQUIRE Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 16, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Movant has brought this motion seeking permission to file a late claim. The Court has

considered the following documents in determining Movant's application:

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

Affirmation of Jeff D. DeFrancisco, Esquire with all exhibits attached


Affirmation of Patricia M. Bordonaro, Assistant Attorney General in

Opposition with all exhibits attached thereto.......................................3

Affirmation of Jeff D. DeFrancisco, Esquire in Response to Affirmation in

Opposition, with all exhibits attached thereto......................................4

The proposed claim, not verified and signed by Movant's counsel, asserts that Defendant, at the State University of New York Health Science Center (hereinafter SUNY) in Syracuse, negligently performed surgery on Movant's left breast on October 13, 1999, leaving surgical gauze in Movant's breast, which resulted in Movant suffering pain and ultimately the loss of half of her left breast and nipple. The proposed claim also asserts a cause of action for failing to properly inform Movant of the dangers associated with the surgery that was performed on October 13, 1999.

A proposed claimant who fails to timely file and serve a claim or serve a notice of intention may be permitted, upon application and in the discretion of the court, to file a claim which complies with Section 11 of the Court of Claims Act, at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the CPLR. (Court of Claims Act §10(6)) Movant never served a notice of intention and no claim was ever served or filed in this matter. Movant's late claim application is timely. (Court of Claims Act §10(6); CPLR 214-a)

Moving to the substantive analysis, 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.

Movant's counsel asserts as an excuse for Movant's failure to timely serve a notice of intention or to file and serve a claim in accordance with Court of Claims Act §10 that she could not have discovered the existence of a foreign body in her left breast until April 6, 2000, the date a sonogram was performed on Movant's breast indicating six small areas containing fluid and debris. Assuming for the moment that the cause of Movant's left breast discharge, pain, infection, and abscesses was surgical gauze, obviously Movant could not have discovered this on her own. Accordingly, a claim based upon complications from the existence of a foreign body remaining from surgery could be a reasonable excuse for the delay. (See, Davis v State of New York, 84 Misc 2d 597)

Turning to whether the State had notice, an opportunity to investigate the facts underlying the proposed claim, or whether the State would suffer prejudice if the application was granted, these factors, being interrelated, will be considered together. Movant does not assert that the State had notice; however, her attorney claims that the defendant had ample opportunity to investigate the underlying claim and will not suffer any prejudice if the application is granted. Defendant does not address these factors. There is no indication that the State had any notice of the facts underlying the claim, or any opportunity to investigate. Despite this, it appears the State would suffer no prejudice if the application were granted. There are certainly medical records from Movant's surgery on October 13, 1999, which would permit the State to identify witnesses, and investigate the circumstances surrounding the surgery and post-operative care of the movant. The record, coupled with Defendant's failure to assert prejudice, leads the Court to find that this factor weighs in favor of Movant's application.

The next factor, whether the claim appears to be meritorious, is referred to as the most essential factor. Unlike a party who has timely filed a claim, one seeking permission to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious. (See, Nyberg v State of New York, 154 Misc 2d 199) 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. (Santana v New York State Thruway Authority, 92 Misc 2d 1, 11) Movant has apparently had a history of breast abscesses prior to October 1999. (Defendant's affirmation, Exhibit B) The surgery performed at SUNY was done on October 13, 1999. Allegedly her problems began in March 2000, when she was seen at Lee Memorial Hospital for chest pain. A sonogram was performed by St. Joseph's Imaging Associates on April 6, 2000 which indicated:
The sonogram of the left breast is markedly abnormal, showing at least six small areas which contain fluid mixed with debris. The etiology of these fluid collections is uncertain. They could represent very dilated ducts, they could represent inflammatory process such as small abscesses. Within the middle of all of these cystic structures is an echogenic area which appears to be somewhat lobulated, linear in nature and has no through transmission. This raises the possibility that this may represent a foreign body such as a piece of gauze. It is also possible that this could represent suture material related to the surgery. (Exhibit F, DeFrancisco Affirmation)

Movant later had a lumpectomy performed at Community General Hospital on May 4, 2000 and the pathology report of the removed tissue and fluid areas indicated, "Ruptured epidermal inclusion cyst with associated fibrosis, acute and chronic inflammation and foreign body reaction."

There is no indication from the documents attached to Movant's application that surgical gauze was actually found in claimant's breast. Although it was listed as a possible component of the areas of fluid seen in her left breast during the sonogram, the pathology report does not list surgical gauze as a component. Reference to a foreign body reaction, does not alone create reasonable cause to belief that surgical gauze was left in movant's breast during surgery at SUNY almost seven months earlier. There is no affidavit from anyone with knowledge of the facts to rule out the possibility that Movant had other surgical procedures between October 1999 and April 2000, or assuming surgical gauze was left in Movant's left breast, to indicate that it was from the surgery performed by the SUNY in October 1999, as Defendant points out. In his responding affirmation, Movant's attorney asserts that Defendant's position is mere speculation. Given the fact that the Court has no sworn documents from anyone with knowledge of the facts and no documents indicating that a foreign body such as surgical gauze was found in Movant's breast, it would be mere speculation on the part of the Court to find that Movant has shown reasonable cause to believe that a valid cause of action exists.

The final factor to be considered is whether Movant has any other available remedy. Movant's counsel asserts that she has no other remedy. This very well may be the case, however it is impossible to tell based upon the information provided.

Upon balancing all of the factors in the Court of Claims Act §10(6), this Court DENIES without prejudice movant's application for permission to file and serve the proposed claim.

January 16, 2001
Syracuse, New York

Judge of the Court of Claims