New York State Court of Claims

New York State Court of Claims

CRANDALL v. STATE OF NEW YORK, #2003-018-253, Claim No. NONE, Motion No. M-66929


Movant brings a motion to file a late claim. Upon balancing all of the factors in the Court of Claims Act § 10(6), this Court GRANTS the 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):
Cross-motion number(s):

Claimant's attorney:
CELLINO & BARNES, P.C.By: Gerald W. Schaffer, Jr., Esquire
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:
September 12, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Movant brings a timely motion seeking permission to file a late claim pursuant to

Court of Claims Act §10(6); CPLR 214-a. Defendant does not oppose the motion.

The proposed claim asserts that movant had surgery, a "Sigmoid Colectomy," performed at the State University of New York, Upstate Medical University (hereinafter University Hospital) on April 9, 2002. During the surgery she allegedly suffered a femoral nerve injury as a result of the malpractice of the State which has caused her to suffer injuries and monetary damages.

On an application for permission to file a late claim, consideration must be given to the six factors listed in Court of Claims Act §10(6), and any other relevant factors. A balancing of all of the factors in the discretion of the Court may warrant the granting of the application to file and serve a late claim; no one factor is 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 first factor is whether the proposed claimant has an acceptable excuse for failing to timely file and serve a claim. Movant's application indicates that she did not timely file a claim, because until recently she did not know that her symptoms would continue and require long-term care. This is not a sufficient excuse (See, DeGroff v State of New York, 43 AD2d 993 [lack of awareness of the seriousness of the injuries suffered was not a reasonable excuse]).

Turning now to the factors of the State's notice of the facts underlying the proposed claim, whether it had an opportunity to investigate the facts, and whether it will suffer prejudice if the application is granted. Movant claims that the State had actual notice of the underlying facts because in the movant's discharge summary from the hospital, she was referred to a neurologist for treatment of the injury she suffered after the surgery. As a result, the movant asserts the State had an opportunity to investigate and will suffer no prejudice if this application is granted. Since the State does not contest these allegations, the Court will find that these factors weigh in favor of granting 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). The basis for movant's claim is the damage caused to her femoral nerve during the Sigmoid Colectomy surgery. Movant has attached, with this application, a copy of the discharge summary from University Hospital, copies of her medical records from University Hospital, records from her care at Bassett Healthcare, and records from her treatment at Presbyterian Rehabilitation Center Lymphedema Clinic. Also included in an affidavit from a physician licensed in Pennsylvania, with the name redacted,[1] setting forth the opinion that there should have been no damage to movant's femoral nerve during the Sigmoid Colectomy, and that such a trauma was caused either by direct injury to the nerve or inappropriate positioning and inattention during the procedure. The cause of this damage, during this type of procedure, from inappropriate positioning or inattention is a deviation from the standard of care. Movant has established that the proposed claim is potentially meritorious. This factor weighs in favor of movant's application.

The final factor to be considered is whether movant has any other available remedy. Movant asserts that she has no other remedy and defendant does not dispute this. This factor also weighs in favor of granting movant's application.

Upon balancing all of the factors in the Court of Claims Act § 10(6), this Court GRANTS the motion. Movant is directed to file and serve the proposed claim, in accordance with the Court of Claims Act and all applicable rules of the Court within 30 days of the date this decision and order is filed.

September 12, 2003
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

Notice of Motion.................................................................................................1

Affirmation of Gerald W. Schaffer, Jr., Esquire in support, with

exhibits attached thereto..........................................................................2

Affirmation in response of Michael R. O'Neill, Esquire, Assistant

Attorney General......................................................................................3

[1] The better practice would be to provide the Court with an unredacted copy of the medical expert's affidavit, advising that opposing counsel's copy of the affidavit was redacted. However, since defendant is not opposing the application the Court will accept the redacted affidavit.