New York State Court of Claims

New York State Court of Claims

MOONEY v. STATE OF NEW YORK, #2001-018-109, Claim No. NONE, Motion No. M-63455


Motion to file late claim denied based upon movant's failure to supply supporting documentation of medical malpractice.

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:
Defendant's attorney:
ELIOT SPITZERAttorney General of the State of New York
Third-party defendant's attorney:

Signature date:
November 8, 2001

Official citation:

Appellate results:

See also (multicaptioned case)

Theodore D. Mooney, alleges that medical malpractice occurred on or about November 21, 2000, while admitted and in the care of SUNY Health Science Center (hereinafter Upstate). The movant was discharged on January 19, 2001. Movant alleges that as a result of the medical malpractice that occurred, he sustained serious injuries, including the loss of his left eye and his right clavicle.
Court of Claims Act §10(6) allows a movant who has failed to serve a notice of intention, or who has failed to file and serve a claim within the time frame allotted to make an application to the Court to file a late claim, in the discretion of the Court, at any time before an action asserting a like claim against a citizen of the State would be barred under Article Two of the CPLR (Court of Claims Act §10(6)). This application is timely. (CPLR 214-a)

To determine whether an application for permission to file a late claim should be granted, the six factors listed in the Court of Claims Act §10(6) need to be considered. The Court is also permitted to consider other factors that it deems appropriate. 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) The Court will balance all the factors in order to determine whether to grant the application to file and serve a late claim.
The Court has accepted as true the factual allegations asserted in movant's application, since the Defendant has failed to respond to the motion (
Cole v State of New York, 64 AD2d 1023; Schweickert v State of New York, 64 AD2d 1026).
The first factor to consider is whether the delay in filing the claim was excusable (Court of Claims Act §10(6)). The movant alleges that the delay in timely serving the notice of intention or filing and serving the claim was the result of the movant's ignorance of the time frame for filing a notice of claim against a municipality. This was the only excuse given by the movant, which is not a valid excuse, therefore movant has not satisfied this factor. (
Griffin v John Jay College, 266 AD2d 16)
The factors of 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 be addressed together. Movant alleges that the State had notice of the essential facts and an opportunity to investigate based on the movant's admission to Upstate on November 21, 2000, through his discharge on January 19, 2001. Movant alleges that based upon the length of his admission to Upstate, the defendant has the records documenting the facts underlying the movant's claim. Movant further asserts that through the hospital's agents, representatives, employees, and/or assigns, the hospital had actual notice. Since the State has failed to deny notice or an opportunity to investigate the facts underlying the claim, the Court finds that these factors weigh in favor of granting movant's application. The State has not asserted prejudice and none would likely result since only one-and-one-half weeks passed from the date the 90 day period for filing and serving the claim expired until movant brought this application. Morever, the State will be able to utilize the medical records for investigative purposes.

The next factor is whether the claim appears to be meritorious; often deemed the most critical factor, since it would be futile to permit a defective claim to be filed even if the other factors have been met. (
Rosenhack v State of New York, 112 Misc 2d 967) The standard is met if the claim 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 does exist. (Matter of Santana v New York State Thruway Authority, 92 Misc 2d, 1) The documents submitted in support of movant's application do not set forth sufficient facts to determine that a valid cause of action exists. Allegations based solely on vague, conclusory and over-general statements are not sufficient to demonstrate merit. (Klinger v State of New York, 213 AD2d 378; Calco v State of New York, 165 AD2d 117, appeal denied 78 NY2d 852)
Furthermore, a finding of merit sometimes requires an affidavit from an expert (i.e., a physician) in a medical malpractice claim. (
Favicchio v State of New York, 144 Misc 2d 212) The affidavit is not always necessary. A physician's affidavit is not necessary where the appearance of medical malpractice can be determined based upon other submissions. (DePaolo v State of New York, 99 AD2d 762). Here, the movant has provided no such submissions. Movant has provided only his own and his attorney's affidavit without any medical documentation or expert opinion. Therefore, for these reasons this factor does not weigh in favor of movant.
The final factor is whether the movant has any other available remedy. Movant did not address this factor. Based on the information before the Court, it would appear that movant would have the available remedy of suing the individual doctors and health care providers in their individual capacities. Therefore, this factor weighs against granting the application.

Accordingly, upon balancing all of the factors in the Court of Claims Act 10(6), this Court DENIES without prejudice the movant's motion to permit the late filing and serving of the claim. It should be noted that this order does not preclude the movant from filing a new application with the proper supporting documentation.

November 8, 2001
Syracuse, New York

Judge of the Court of Claims

The Court considered the following in deciding this motion:
1. Notice of Motion with exhibit attached thereto.
  1. Memorandum of Law prepared by movants' attorney.
No response was filed by defendant.

[1]All references to movant will refer to Theodore D. Mooney, unless otherwise noted since Suzanne Mooney's claim is solely derivative in nature.