The following papers were reviewed by the court on this motion: Claimants'
Notice of Motion, Claimants' Affirmation in Support and annexed Exhibits A-C,
Claimants' Reply Affirmation, Defendant's Affirmation in Opposition.
Claimants, Natalie Bologna, an infant by her m/n/g April Bologna, and April
Bologna, individually, have moved pursuant to Court of Claims Act(CCA)
§10(6) for an order granting them leave to file a late Claim. Defendant,
the State of New York, has opposed this motion.
Claimants are bringing an action against defendant to recover damages for
injuries sustained due to medical malpractice and negligence. On January 21,
2000, claimant, April Bologna(April), gave birth to her daughter, claimant,
Natalie Bologna(Natalie), at the State University Medical Center at Stonybrook.
Natalie allegedly suffered severe nerve damage to her right side as a result of
the negligent medical care rendered in connection with her delivery. At this
time, Natalie allegedly suffers from "Erb's Palsy" on her right side. Claimants
retained affirmant's firm on or about August 18, 2000. Thereinafter,
affirmant's firm investigated this matter and filed the instant motion on
November 6, 2000.
At the outset the Court must point out that a late Claim motion is unnecessary
for the claim of the infant claimant, Natalie. CCA §10(5) provides that a
claimant who is under a legal disability may present the claim within two years
after such disability is removed. It has long been settled that infancy falls
under the auspices of a disability for the purposes of this section. Barrett
v State of New York, 161 AD2d 61, 560 NYS2d 302 (2nd Dept.1990); Kaplan
v State of New York, 152 AD2d 417, 549 NYS2d 853 (3rd Dept.1989); Weber
v State of New York, 267 AD 325, 45 NYS2d 834 (3rd Dept. 1944). Claimant,
Natalie, is well within the time period for the filing of a Claim without the
requirement of a late Claim motion. Therefore, the portion of this motion
concerning the infant, Natalie, is denied as being moot.
Turning to that portion of the motion which addresses the claims of claimant,
April, individually, the CCA§10(6) grants upon the Court the discretion to
allow the filing of a late claim provided the Statute of Limitations as set
forth in article 2 of the CPLR has not elapsed. In determining whether relief to
file a late claim should be granted, the Court must take into consideration the
factors set forth in §10(6) of the Court of Claims Act. Bay Terrace
Cooperative Section IV, Inc. v New York State Employees' Retirement
System Policemen's and Firemen's Retirement System, 55 NY2d 979 (1982). The
factors are not necessarily exhaustive, nor is the presence or absence of any
particular one controlling. Id. They are whether (1) the delay in filing
the claim was excusable; (2) the defendant had notice of the essential facts
constituting the claim; (3) the defendant had an opportunity to investigate the
circumstances underlying the claim; (4) the claim appears to be meritorious; (5)
the defendant was substantially prejudiced; and (6) the claimant has any other
Claimant does not offer any acceptable excuse for the delay in the filing of
her claim. However, lack of an acceptable excuse, alone, is not an absolute bar
to a late claim application. Matter of Carvalho v State of New York. 176
AD2d 317 (2nd Dept. 1991). A reasonable excuse for untimely service is only one
of several factors taken into consideration by the Court when considering
whether to allow late filing of a claim and is not by itself
In considering the closely related factors of notice, opportunity to
investigate, and prejudice, the Court finds it particularly significant that the
defendant is in possession of the claimant's medical records. While it is true
that defendant was not put on notice by the mere possession of the records,
defendant is not offering any specifics as to how it is or has been
substantially prejudiced by the delay in filing of this claim. Ayala v City
of New York, 189AD2d 632 (1st Dept. 1993). Additionally, in the ordinary
and regular course of hospital treatment and record keeping, any pertinent
medical records must have been preserved for a much longer period of time than
the delay here. Therefore, after weighing all the circumstances involved in the
present action, these factors are found to be in claimant's favor.
Claimant may have a viable action against certain physicians and individuals
in the New York State Supreme Court.
The most significant issue considered by the Court in an application to file a
late claim is whether the claim appears meritorious. To permit the filing of a
legally deficient claim would be an exercise in futility. Savino v State of
New York, 199 AD2d 254 (2nd Dept. 1993). Claimant has provided the Court
with a Proposed Claim, a Supporting Affidavit and a Physician's Affirmation in
which the essential facts constituting a cause of action against the defendant
for medical malpractice are set forth. They are sufficient to demonstrate, at
this stage in the litigation, that the claim appears to be meritorious.
Therefore, for the foregoing reasons, the Court finds it proper to grant
claimant, April, leave to file a late Claim. However, as previously stated, the
portion of this motion seeking relief for claimant, Natalie, is denied as moot.
Within sixty (60) days of the date this decision and order is filed, claimant
shall file and serve her claim pursuant to the Court of Claims Act
§§11 and 11-a.