New York State Court of Claims

New York State Court of Claims

DECKER v. STATE OF NEW YORK, #2003-018-255, Claim No. NONE, Motion No. M-66858


Claimant's motion to file a late claim granted upon consideration of the factors in Court of Claims Act § 10(6).

Case Information

DOUGLAS DECKER The Court has amended the caption sua sponte to reflect the State of New York as the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has amended the caption sua sponte to reflect the State of New York as the only proper defendant.
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, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 22, 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 was admitted to the State University of New York, Upstate Medical University (hereinafter University Hospital) on August 6, 2002, for performance of a "lavage procedure." Movant asserts that the State used the wrong solution in performing the procedure which caused movant to suffer injuries and 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 he was in a coma for a period of time after the incident; however, he was discharged from the hospital on September 16, 2002. He provides no explanation why he was unable to timely file and serve a claim during the remaining 49 days. Movant also notes that he had only recently learned that University Hospital is owned and operated by the State. The lack of knowledge that University Hospital is a State entity is not a sufficient excuse for failing to timely file and serve a claim (See, Erca v State of New York, 51 AD2d 611 [mistake as to proper entity to sue, not a reasonable excuse]). Movant does not have a valid excuse for his delay in timely filing and serving a claim in this matter.

The Court will now address 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 asserts that given the facts involved in this proposed claim, some internal hospital incident report should have been generated or an investigation conducted. Movant also asserts that no prejudice will result, since the State has had all of his medical records in its possession which sets forth all of the relevant facts. Since the State does not contest these assertions, 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 defendant's use of an improper substance to perform a "Pulmonary Lavage." Movant has attached with this application, a copy of the discharge summary from University Hospital and an affidavit from Dr. David Martinez, movant's current treating physician. Dr. Martinez indicates that the use of "sterile water" instead of a "saline solution" was a departure from accepted medical practice and led to movant's pulmonary hemorrhage and many complications. 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 he 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, with the caption and the body amended to reflect the State of New York as the only proper defendant, 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 22, 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

Affidavit of Douglas Decker, in support, with exhibits attached................2

Affirmation of Michael R. O'Neill, Esquire,

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