New York State Court of Claims

New York State Court of Claims

TRUDEAU v. STATE OF NEW YORK, #2001-018-099, Claim No. 102656, Motion Nos. M-62821, M-63516


Court granted motion to file late claim; denied summary judgment motion.

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):
M-62821, M-63516
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 19, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


There are two motions pending before the Court. Claimant filed an earlier motion for

summary judgment on Claim number 102656. Claimant also brings a motion seeking permission

to file a late claim pursuant to Court of Claims Act Section 10(6). The Court has considered the

following documents in determining the motions:

Motion No. M-62821

Notice of Motion for Summary Judgment.................................1

Affirmation of Kevin P. Kuehner, Esquire

with all exhibits attached thereto....................................2

Affirmation in Opposition of Michael R. O'Neill, Esquire

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

Motion No M-63516

Notice of Motion For Permission to File A Late Claim.............4

Affidavit of Joseph S. Cote, III, Esq., in Support with all Exhibits

attached thereto including a proposed verified claim.....5

No responding papers were filed on behalf of defendant. The Claimant seeks damages for medical malpractice. It is alleged that on July 10,1999, Claimant was admitted to the State University of New York Health Science Center (hereinafter SUNY) for surgery involving the placement of a J-tube. Claimant alleges that following the surgery he suffered continual abdominal pain and was diagnosed with an infection. On or about September 2, 1999, Claimant alleges that it was discovered that surgical gauze was left in his abdomen during the July surgery. On September 14, 1999, Claimant underwent a second surgery to remove the gauze. Claimant alleges that he suffered additional medical procedures, pain and suffering, and permanent injuries as a result of the State's negligence.

This case has a long and sordid history. Claimant served a notice of intention upon the attorney general on October 15, 1999 by regular mail. On January 14, 2000, Claimant filed a verified claim with the Clerk of the Court (Claim number 101773) and served the attorney general with a copy of the claim by regular mail. Claimant was later advised that the notice of intention and claim were served improperly. Claimant then filed a motion seeking permission to file a late claim with the Clerk of the Court on February 25, 2000. (Motion number M-61278) This Court granted that motion by Order filed on June 13, 2000, and directed Claimant to file a late claim. Claimant filed the proposed claim with the Clerk of the Court on June 26, 2000, (Claim number 102656). The claim filed was not verified. On December 7, 2000, Claimant filed the motion for summary judgment. In reviewing Claimant's motion papers, the Court became aware that Claim number 102656 had not been verified resulting in a jurisdictional defect. (Martin v State of New York, 185 Misc 2d 799) Based upon the foregoing, Claimant brings this second motion for permission to file a late claim. The Court adjourned Claimant's summary judgment motion to the return date of the late claim motion.

The Court will address the Claimant's summary judgment motion first.

Claimant seeks partial summary judgment. In support of his motion, Claimant has submitted the affirmation of his attorney, a copy of the unverified claim, the verified answer, the uncertified, unsworn, unsigned medical records from September 29, 1999 (Exhibit B) and November 4, 1999 (Exhibit C), a copy of a document labeled SUNY Health Science Center Clinical Policy & Procedure: Sponge, Needle and Instrument Count (Exhibit D); and a copy of a redacted affidavit from an unknown individual made in support of Claimant's initial late claim application (Exhibit E).

In reviewing the submitted documents and searching the record, the Court has noted that Claimant did not file a verified claim as required by Court of Claims Act §11(b). The Defendant did not treat the unverified claim as a nullity, nor did it raise it as a defense or move to dismiss the claim, which some Courts have held under some circumstances results in a waiver of the objection. (See for example, Ritangela Construction Corp. v State of New York, 183 AD2d 817; Mobil Health, Inc. v State of New York, 149 Misc 2d 784) However, unlike an action brought in Supreme Court pursuant to the CPLR, the requirements of §11(b) of the Court of Claims Act have been found to be jurisdictional in nature; and as such, the failure to comply results in a jurisdictional defect which cannot be corrected by a nunc pro tunc order or by amendment. (Martin v State of New York, 185 Misc 2d 799) As a result, the Court finds that summary judgment should be granted to Defendant and claim number 102656 is DISMISSED.

Nonetheless, were the Court to reach Claimant's summary judgment motion, it would be denied. A party seeking summary judgment must submit proof in admissible form. (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067) Claimant has failed to submit evidence in admissible form establishing that he is entitled to judgment as a matter of law. The affirmation and claim from Claimant's counsel, who has no personal knowledge of the facts involved, lacks evidentiary value. (Wright v Rite-Aid of NY, 249 AD2d 931) The uncertified medical records are not in proper evidentiary form for purposes of a summary judgment motion. (Joseph E. G. v East Irondequoit Cent. School District, 273 AD2d 835) Furthermore, the redacted affidavit from an unknown individual, presumably a doctor, (although the only indication of this is from Claimant's counsel's affirmation) is insufficient to support such a drastic remedy. (Marano v Mercy Hosp., 241 AD2d 48)

In determining the late claim 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. The delay is due to the unusual sequence of events as set forth above. Inadvertently failing to file a verified claim is not an acceptable excuse. (500 Eighth Ave Assoc. v State of New York, 30 AD2d 1010) 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. Claimant has attached the notice of intention which was served, although improperly, upon the attorney general less than four months after the July 10, 1999 surgery. The notice of intention sets forth Claimant's allegations, and the time frame in which it was served gave the Defendant almost timely notice of the occurrence and thus an opportunity to investigate. The Defendant will not be prejudiced by the Court granting Claimant's application.

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) Although normally in a medical malpractice case an expert affidavit is necessary in order for the Court to find that Claimant has a meritorious cause of action, this case falls into a narrow category of factually simple medical malpractice claims in which one can conclude without such an affidavit that the accident would not have happened in the absence of negligence. (Kambat v St. Francis Hospital, 89 NY2d 489, 496) The operative/procedure report attached to Claimant's motion clearly sets forth sufficient facts to allow this Court to find that there is reason to believe that Claimant has a valid cause of action.

The final factor is whether the Claimant has any other available remedy. The Claimant did not address this issue; however, it appears to the Court based upon the facts before it, that the only other remedy that might be available to Claimant is an individual medical malpractice action against the individual surgeons.

Upon balancing all of the factors in Court of Claims Act §10(6), this Court finds that Claimant's application should be granted.

Accordingly, Claimant's motion for summary judgment is DENIED, summary judgment is granted to the Defendant and claim number 102656 is hereby DISMISSED.

Claimant's late claim application is GRANTED. Claimant is directed to file and serve, in accordance with all applicable statutes and Court rules, the proposed verified claim within forty- five (45) days of the date this order is filed with the Clerk of the Court or no later than January 10, 2002, whichever occurs first.

August 19, 2001
Syracuse, New York

Judge of the Court of Claims