New York State Court of Claims

New York State Court of Claims

ODIGE v. THE STATE OF NEW YORK, #2003-016-064, Claim No. None, Motion No. M-66853


Late claim motion alleging malpractice at Downstate was granted.

Case Information

MARIE ODIGE, as Administratrix of the Estate of CARMELITE CANGE, Deceased, and MARIE ODIGE, Individually The caption has been amended to reflect that the sole proper defendant is the State of New York.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect that the sole proper defendant is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Alan C. Marin
Claimant's attorney:
Queller, Fisher, Dienst, Serrins, Washor & Kool, LLPBy: Barry Washor, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Ellen Matowik, Esq., AAG
Third-party defendant's attorney:

Signature date:
August 26, 2003
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This motion is made by Marie Odige, as Administratrix of the Estate of Carmelite Cange, and Individually, who alleges that defendant failed to properly diagnose and treat Carmelite Cange's postoperative hemorrhage, resulting in Ms. Cange's death when she was a patient at the State University of New York Health Science Center at Brooklyn ("Downstate") from July 21- July 22, 2001. With respect to a wrongful death cause of action, Ms. Odige seeks an order pursuant to CPLR 2004 permitting the nunc pro tunc filing of a claim she served on defendant on April 1, 2003 (but did not file with the Clerk's office), or, in the alternative, an order permitting her to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). As to a cause of action for conscious pain and suffering, she seeks permission to file a late claim.[1] * * *

With respect to claimant's request for permission to nunc pro tunc file a claim previously served on defendant, such relief is not available to cure the jurisdictional defect caused by claimant's failure to timely file her claim. See, e.g., Byrne v State of New York, 104 AD2d 782, 480 NYS2d 225 (2d Dept 1984), lv denied 64 NY2d 607, 488 NYS2d 1023 (1985).

With regard to permission to file a late claim, in order to decide this motion, six factors enumerated in the Act must be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.[2]

The first, second and third factors – whether the defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this motion are intertwined and may be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). In this case, however, a distinction should be drawn among these factors. With regard to notice, while defendant may have known of Carmelite Cange's July 22, 2001 death, it is undisputed that prior to the service of an unfiled claim on defendant on March 31, 2003 and an unfiled amended claim on April 1, 2003 – more than 20 months later, claimant had not made defendant aware of her intention to bring a claim. The issue is thus whether defendant's possession of medical records, without more, is sufficient to impute notice for the purpose of the Act. If so, this would mean that in any medical malpractice case, the notice factor would automatically be satisfied. I cannot find that notice has been satisfied in this case. See O'Shea v State of New York, Ct Cl filed 11/5/99, Marin, J. (unreported, motion no. M-59853), affd 278 AD2d 237, 717 NYS2d 293 (2d Dept 2000). Such medical records do, however, offer an opportunity to investigate this claim. Moreover, aside from a conclusory assertion that it will be prejudiced by the granting of this motion, defendant has pointed out no identifiable prejudice.

As to an alternate remedy, claimant may have a cause of action against certain treating physicians in Supreme Court, although the viability of such cause of action is unknown.

With regard to excuse, the deadline for claimant to file and serve a wrongful death claim (or serve a notice of intention) was 90 days following the appointment of an administratrix, in this case, 90 days after January 6, 2003, or April 7, 2003. See §10.2 of the Act and General Construction Law §25-a. Claimant did timely serve a claim within such time frame, but failed to file it. To the extent she asserts law office failure, such is not recognized as a valid excuse for the purposes of the Act. See, e.g., Matter of E.K. (Anonymous) v State of New York, 235 AD2d 540, 652 NYS2d 759 (2d Dept 1997), lv denied 89 NY2d 815, 659 NYS2d 856 (1997). For a conscious pain and suffering cause of action, claimant was required, within 90 days of Carmelite Cange's death, i.e., by October 22, 2001, to either serve a notice of intention or serve and file a claim. See §10.3 of the Act and General Construction Law §25-a. As to an excuse with respect to this cause of action, claimant essentially asserts that she was unable to timely obtain Ms. Cange's medical records. However, claimant has failed to cite any authority that this is a valid excuse for the purposes of the Act or, for example, submitted a physician's affirmation that such records would be necessary for the preparation of a claim or notice of intention. See Goldstein v State of New York, 75 AD2d 613, 427 NYS2d 63 (2d Dept 1980). In short, claimant fails to satisfy the excuse factor of the Act.

The final factor to be considered is merit. As an initial matter, defendant argues that the proposed claim is not sufficiently particular for the purposes of §11 of the Act, which requires that the particulars of a claim be sufficiently detailed to enable the State to promptly determine the existence and extent of its liability. Sinski v State of New York, 265 AD2d 319, 696 NYS2d 70 (2d Dept 1999). While the proposed claim in this case is not highly detailed, it does contain the dates of treatment and asserts that defendant failed to timely diagnose and treat Carmelite Cange's postoperative hemorrhage. I thus find that it satisfies §11 of the Act.

As to merit for the purposes of §10.6 of the Act, claimant has submitted the affidavit of Elliot Newhouse, M.D., who reviewed Ms. Cange's medical records and autopsy report. See exhibit 5 to the Washor Aff. Dr. Newhouse notes that she was admitted on July 21, 2001, on which date she underwent a caesarean section and delivered twin boys. The following day, she suffered respiratory distress and died. He further states that departures from accepted medical standards resulted in the failure to diagnose blood in the abdomen which caused the death of Ms. Cange. Specifically, he describes the departures as including failure to consider bleeding in the abdomen of a postoperative patient with an increased heart rate and decreased blood pressure, which symptoms require careful monitoring to ascertain if there is a bleeding problem; failure to detect a patient going into shock with an increase in acid in the blood related to lack of oxygen to vital organs, which is indicative of a bleeding problem; failing to monitor blood pressure heart rate oxygen saturation in a patient with signs and symptoms of hemorrhagic shock; failing to order a ventilation perfusion scan; giving a large dose of a diuretic to a patient in a shock state; failing to do more intensive monitoring despite severe hypotension; and failing to perform an abdominal sonogram or CT scan.

In sum, I find that claimant meets the standard set forth in Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977) for the appearance of merit: (i) the claim "must not be patently groundless, frivolous or legally defective" and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, "there is reasonable cause to believe that a valid cause of action exists."

For the foregoing reasons, having reviewed the parties' submissions[3], IT IS ORDERED that motion no. M-66853 be granted to the extent that claimant shall be permitted to serve and file a late claim, but shall otherwise be denied. IT IS FURTHER ORDERED that within forty-five (45) days of the filing of this Decision and Order, claimant shall serve and file her claim, naming only the State of New York as defendant, and otherwise comply with §§11 and 11-a of the Court of Claims Act.

August 26, 2003
New York, New York

Judge of the Court of Claims

  1. [1]In her moving papers, claimant also sought an order directing defendant to identify certain physicians and nurses named in Carmelite Cange's medical records. As claimant does not dispute defendant's representation that it subsequently provided such information, such request will not be addressed herein.
  2. [2]See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  3. [3]The following were reviewed: claimant's notice of motion with supporting affidavit and exhibits 1-6; defendant's affirmation in opposition with exhibit A; and "Claimant's Reply" with exhibits A-C.