New York State Court of Claims

New York State Court of Claims

PARODY v. STATE OF NEW YORK, #2001-018-097, Claim No. NONE, Motion No. M-63078


Case Information

STANLEY H. PARODY and HELEN PARODY The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court 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):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
By: MICHAEL R. O'NEILL, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 17, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Movants bring this motion seeking permission to file a late claim pursuant to Court of

Claims Act §10(6). Defendant opposes the motion. The Court has considered the following

documents in determining the motion:

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

Affidavit of Stanley H. Parody, in support, with all exhibits

attached thereto.....................................................................2

Affidavit of Harry M. Rosenblum, M.D., with Exhibit A

attached thereto......................................................................3

Affirmation of Michael R. O'Neill, Assistant Attorney General,

in opposition, with Exhibit 1 attached thereto........................4 The proposed claim seeks damages for negligence, medical malpractice and lack of informed consent. It is alleged that on June 21, 1999, Movant[1] was admitted to University Hospital for coronary artery bypass surgery. Allegedly, Movant had single-vessel coronary artery disease of the "obtuse marginal branch of the circumflex artery." (Rosenblum Affidavit, paragraph 7) Bypass surgery was to be performed, grafting a vein from Movant's leg to the marginal branch of the circumflex. In September 1999, because Movant continued to have chest pain, it was discovered that the vein graft performed on June 21, 1999, was actually placed to the wrong artery, the first diagonal branch of the left anterior descending coronary artery. As a result of the State's actions, Movant asserts that he underwent additional procedures during the June 21, 1999, bypass surgery which have contributed to his weakened condition since the surgery. Furthermore, alternative treatments of Movant's diseased artery were necessary because repeat bypass surgery would have been detrimental to Movant. (Rosenblum Affidavit, paragraph 8)

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 the fact he was still weak from the bypass surgery and was unable to see his lawyer until October 21, 1999. Physical incapacity can be a sufficient excuse, however, more than a mere assertion is required. (DeOlden v State of New York, 91 AD2d 1057; Epstein v State of New York, 88 AD2d 967) There is no indication from the supporting documents that Movant has presented that he was so incapacitated during the 90 days that followed his bypass surgery that he could not contact his attorney and serve a notice of intention. The Court finds that this factor weighs against granting Movant's application.

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 does not assert that the State had notice of the essential facts or an opportunity to investigate. Defendant does not address these factors. The Court finds, based upon the information provided, that the State had no notice of the essential facts or an opportunity to timely investigate. Despite this lack of notice and opportunity to investigate, detailed medical records exist describing the surgery and the care Movant received to assist Defendant in determining what occurred during the bypass surgery on June 21, 1999; therefore, the State will not suffer prejudice by the granting of this motion.

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 an affidavit from Harry M. Rosenblum, M.D., a surgeon certified in thoracic surgery. Doctor Rosenblum is of the opinion that Movant's care deviated from acceptable standards in that the wrong artery was bypassed, leaving the diseased artery without intervention. Based upon the supporting documentation submitted, the Court finds that Movant has set forth sufficient facts for this Court to find that there is reasonable cause to believe that Movant has a valid cause of action.

The final factor is whether the Movant has any other available remedy. Defendant points out that Movant has commenced an action in the Supreme Court, St. Lawrence County against the individual doctors who performed the bypass surgery. Thus Movant has another remedy. The Court finds this factor weighs against granting Movants' application.

Accordingly, upon balancing all of the factors in Court of Claims Act §10(6), this Court GRANTS Movants' motion to file a late claim, and Movants are directed to file and serve a claim upon the attorney general within thirty (30) days of the filing of this Decision and Order, in compliance with Court of Claims Act §§11 and 11-a.

August 17, 2001
Syracuse, New York

Judge of the Court of Claims

[1]All references to Movant refer to Stanley H. Parody unless otherwise noted.