Movant brings a timely motion seeking permission to file a late claim pursuant
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
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
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
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.
The Court has considered the following documents in deciding this motion:
Affidavit of Douglas Decker, in support, with exhibits
Affirmation of Michael R. O'Neill, Esquire,