New York State Court of Claims

New York State Court of Claims

LaCLAIR v. STATE OF NEW YORK, #2002-018-154, Claim No. None, Motion No. M-64869


Movant brought a motion to file a late claim. Upon balancing all of the factors in the Court of Claims Act §10(6), this Court DENIES the motion without prejudice.

Case Information

DAVID L. LaCLAIR, JR. and KELLY LaCLAIR The caption has been amended to reflect the only proper defendant, the State of New York. This Court does not have jurisdiction over the individual doctors named in the caption of the moving documents.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant, the State of New York. This Court does not have jurisdiction over the individual doctors named in the caption of the moving documents.
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, Esquire Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 18, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Movants bring this application for permission to file a late claim pursuant to Court of

Claims Act §10(6). The defendant opposes the motion.
The proposed claim seeks damages for permanent injuries sustained by movant, David L. LaClair, Jr.,[1]
due to the alleged malpractice of the defendant on December 18, 2000, when he underwent surgery at the State University of New York Hospital (hereinafter Upstate). Movant complains that his surgery was performed by a resident, Dr. Tien T. Nguyen, under the supervision and assistance of his doctor, Dr. Kenneth Yonemura; a fact of which movant was not aware until some time after the surgery. Movant was under the belief that Dr. Yonemura would be performing the surgery. According to movant, during the surgery a nerve was contacted causing movant's head to "jerk" to the left. This jarred the tube which had been inserted to deflate movant's right lung, causing his lung to inflate. As a result of the lung inflating, the surgery could not be performed as originally planned. A larger incision had to be made severing muscles, nerves, and ligaments and allegedly causing movant's loss of right arm and shoulder movement. Movant was hospitalized from December 18, 2000 through December 24, 2000, confined to his bed and residence through February, 2001, and remains permanently disabled. Movant now seeks to bring a claim against the State of New York, 15 months after the surgery.
A proposed claimant who fails to timely file and serve a claim or serve a notice of intention may be permitted, upon application and in the discretion of the court, to file a claim which complies with §11 of the Court of Claims Act, at any time before an action asserting a like claim against a citizen of the State would be barred under the provisions of article two of the CPLR. (Court of Claims Act §10(6)) The motion is timely. (Court of Claims Act §10(6); CPLR 214-a)

Turning to the substantive analysis, to determine whether an application for permission to file a late claim should be granted, consideration must be given 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.
Movants assert as an excuse for the failure to timely serve a notice of intention or to file and serve a claim in accordance with Court of Claims Act §10, that for months, they believed that Dr. Yonemura had performed the surgery on December 18, 2000, and that movant's problems with his right arm and shoulder were temporary and would dissipate over time. At some point during the late summer of 2001, Dr. Yonemura allegedly disclosed that he had only assisted with the surgery, and that during the procedure movant's chest tube became dislodged causing his right lung to inflate requiring a larger incision be made. Given this information, and the fact that movant's shoulder and right arm had not adequately improved, movant consulted with counsel. Movant has failed to state a valid excuse for not timely filing. (
DeGroff v State of New York, 43 AD2d 993)
Turning to whether the State had notice, an opportunity to investigate the facts underlying the proposed claim, or whether the State would suffer prejudice if the application was granted, these factors, being interrelated, will be considered together. Movant asserts that the State had notice of the essential facts relating to movant's hospitalization and treatment and that it will not be prejudiced by this late claim because all of the medical records are available. The medical records from movant's surgery and hospitalization would permit the State to identify witnesses and investigate the circumstances surrounding movant's treatment. The records, coupled with defendant's failure to assert lack of notice, opportunity to investigate or prejudice, leads the Court to find that these factors weigh in favor of movant's application.

The next factor, whether the claim appears to be meritorious, is referred to as the most essential factor. Unlike a party who has timely filed a claim, one seeking permission to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious. (
See, Nyberg v State of New York, 154 Misc 2d 199) 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 attached only medical records; no expert medical affidavit was provided asserting facts evidencing a meritorious cause of action. (Colson v State of New York, 115 Misc 2d 402) It is clear from the records that movant's head position changed during the surgery resulting in the tube in his lung becoming displaced, and the inflation of his lung and subsequent "5th interspace thoracotomy" being performed. (Movant's Exhibit A, Operative Procedure Report) However, it is impossible to say without an expert affidavit or affirmation that there is reasonable cause to believe that the defendant deviated from the standard of care and that the deviation damaged movant. This is not the type case which would permit the Court to determine, without an expert affidavit, that a valid cause of action may exist. (Schreck v State of New York, 81 AD2d 882; Colson v State of New York, supra; Favicchio v State of New York, 144 Misc 2d 212; but see, e.g., DePaolo v State of New York, 99 AD2d 762 (claimant's medical records established condition which based upon the packaging literature of Motrin should have precluded the use of the drug); Critelli v Long Is. Jewish-Hillside Med. Ctr., 115 AD2d 632 (left sponge in plaintiff during surgery).)
The final factor to be considered is whether movant has any other available remedy. Movant's counsel asserts that there is no other remedy. As defendant points out, movant could bring individual suits against the physicians who performed the procedure on December 18, 2000 in Supreme Court. As a result, this factor weighs against granting movant's application.
Upon balancing all of the factors in the Court of Claims Act §10(6), this Court DENIES the motion without prejudice.

July 18, 2002
Syracuse, New York

Judge of the Court of Claims

The Court considered the following documents in deciding this motion:

Notice of Motion..........................................................................................1
Affidavit of P. Michael Shanley, in support, with all exhibits attached thereto................................................................................................2

Affidavit of Movants, in support, with all exhibits attached thereto.................................................................................................3

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

in opposition,.......................................................................................4

[1]References to movant hereinafter will refer to David L. LaClair, unless otherwise noted.