New York State Court of Claims

New York State Court of Claims

MURPHY v. STATE OF NEW YORK, #2001-018-080, Claim No. NONE, Motion No. M-62573


Synopsis


Motion to file late claim denied after the balancing of all the factors in Court of Claims Act §10(6).

Case Information

UID:
2001-018-080
Claimant(s):
JOHN MURPHY and KEITHA MURPHY The State has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Claimant short name:
MURPHY
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The State has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-62573
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
FRANK J. VAVONESE, ESQUIRE
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: PATRICIA M. BORDONARO, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 9, 2001
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Movant brings this motion seeking permission to file a late claim. Defendant opposes the


relief requested. The Court has considered the following documents in determining the motion:


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


Affirmation of Frank J. Vavonese, Esq in Support..............................2


Affidavit of John Murphy in Support...................................................3


"Notice of Claim & Claim"...................................................................4


Certificate of Merit................................................................................5


Affirmation of Patricia M. Bordonaro, Assistant Attorney

General in Opposition with all exhibits attached

thereto.........................................................................................6

The proposed claim alleges that between April 19, 1998 and May 20, 1998, the State was negligent in treating Movant at the State University of New York Health Science Center (hereinafter SUNY) for injuries suffered as a result of his involvement in a motor vehicle accident. Movant asserts that during his seven-day stay at the hospital he made many complaints to hospital personnel of pain in his teeth and jaw as well as blurred and double vision. Despite these complaints, Movant alleges the State failed to diagnosis or treat these problems, since after he was released from the hospital Movant sought treatment for his teeth and jaw pain and was diagnosed with a fractured jaw. Movant also sought further treatment from the State for his vision problems and was mis-diagnosed with farsightedness and prescribed glasses, then was later diagnosed with nerve damage. Movant asserts that as a result of the State's failure to diagnose and treat his broken jaw and the alleged nerve damage to his eye, he has suffered pain and suffering and permanent injuries.

In determining this motion the Court must give consideration 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. Movant asserts that the delay in filing the claim was due to his medical condition and his lack of awareness of the State's negligence. Movant was hospitalized for seven days and discharged home. He was directed to remain out of work for one month. There is nothing to substantiate the extent of Movant's extended incapacitation which allegedly prevented him from serving even a notice of intention within 90 days. Without substantiation, this is not a valid excuse. (Duffy v State of New York, 264 AD2d 911; Klinger v State of New York, 213 AD2d 378; Cabral v State of New York, 149 AD2d 453; compare, Erca v State of New York, 51 AD2d 611 (claimant hospitalized for 76 days sufficient excuse); Wolf v State of New York, 140 AD2d 692 (record amply supported claimant's physical incapacitation)) Furthermore, Movant has failed to provide any time frame during which he allegedly was unaware of the State's negligence precluding consideration of this argument. The facts, as presented, do not support a valid excuse for failing to file a timely claim or notice of intention.

The next factors, 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. Movant argues that the State had notice of the essential facts, since it was the State that was treating Movant during the period of time he was hospitalized and thereafter, during which it failed to diagnose his fractured jaw and mis-diagnosed his vision problems. Movant cannot rely on the same misfeasance which gave rise to the claim as notice of the omission. (Rosado v State of New York, Ct Cl, J. McNamara, Filed June 22, 1998, Motion No. M-57211, Claim No. None) Furthermore, although Defendant does have in its possession Movant's medical records, it does not appear from those records submitted by the Defendant that Movant made any complaints of jaw pain or blurred and double vision. As a result, the medical records would not have provided notice of the essential facts. However since the medical records are available to assist in evaluating the quality of care Movant received, the State would suffer no prejudice by the late filing of this claim.

The next factor, often deemed the most critical, is whether the proposed claim has the appearance of merit. 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) Movant has submitted nothing more than his attorney's affirmation, his affidavit, and his attorney's certificate of merit claiming to have consulted with one physician regarding the merits of the claim. There is nothing offered to substantiate the injuries he alleges were present at the time Movant was hospitalized, nor is there anything offered other than Movant's and his counsel's unqualified opinions indicating any causal connection between the alleged negligence of the State and the alleged damages Movant suffered. (Favicchio v State of New York, 144 Misc 2d 212; Colson v State of New York, 115 Misc 2d 402) Defendant, in response, has come forward with Movant's medical records from his hospital stay. These records fail to document any complaints by Movant for the seven days he was hospitalized of pain in his jaw or problems with his vision. Movant did not submit any reply to Defendant's documentation. The Court finds that this factor weighs against Movant's application.

The final factor is whether the Movant has any other available remedy. Movant asserts that he has no other remedy for the negligence of the State of New York, which is true. However, Movant did sue the driver of the vehicle that struck him and caused the fractured jaw and injury to his eyes, but states that it was "settled without extensive litigation" because the individual had few assets and limited insurance coverage. (Murphy Affidavit ¶11) No specifics were provided. Based upon the record before the Court at this time, the Court finds this factor weighs against granting Movant's application.

Accordingly, upon balancing all of the factors in Court of Claims Act §10(6), this Court DENIES Movant's motion.


April 9, 2001
Syracuse, New York

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