New York State Court of Claims

New York State Court of Claims

MORTILLA v. THE STATE OF NEW YORK, #2003-033-004, Claim No. None, Motion No. M-65998


Synopsis


Late Claim motion in medical malpractice denied

Case Information

UID:
2003-033-004
Claimant(s):
ERIC MORTILLA
Claimant short name:
MORTILLA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-65998
Cross-motion number(s):

Judge:
JAMES J. LACK
Claimant's attorney:
Fisher & Seidner, P.C.By: Larry Rosenfeld, Esq.
Defendant's attorney:
Eliot Spitzer New York State Attorney GeneralBy: Rachel Goldberg, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 14, 2003
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a motion of Eric Mortilla (hereinafter "movant") for permission to file a late claim pursuant to Court of Claims Act §10(6), relating to an alleged act of medical malpractice.[1] In determining whether to grant a timely made application for permission to file a late claim, the Court must consider, among any other relevant factors, the six statutory factors set forth in Court of Claims Act §10(6):

(1) whether the delay in filing the claim was excusable;

(2) whether the State had notice of the essential facts constituting the claim;

(3) whether the State had an opportunity to investigate the circumstances underlying the claim;

(4) whether the claim appears to be meritorious;

(5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and

(6) whether the movant has another available remedy.

The Court in the exercise of its discretion balances these factors, and, as a general rule, the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979).

In reaching a determination, the Court has examined and considered the papers and exhibits of the parties in conjunction with the applicable statute and case law. The Court finds that the majority of factors are not in claimant's favor. While the presence or absence of any one of the six factors is not dispositive, (Bay Terrace Coop. Section IV v New York State Employee's Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979), the most critical factor always is the apparent merit of the proposed claim.

It is unclear from claimant's exhibits as to what happened with the scheduled MRIs. Claimant's affidavit states that he tried to schedule an MRI twice and was refused both times due to his inability to pay. However, the hospital records, from the State University Hospital at Stony Brook (hereinafter "Stony Brook") submitted by claimant indicate that an MRI was scheduled on two separate occasions. The records are not clear as to whether or not the tests were performed and, if not, why they were not done. In addition, defense counsel declares in her opposing affirmation that during claimant's deposition on September 30, 2002, claimant acknowledged that he twice scheduled MRIs at Stony Brook and then canceled them. There is insufficient evidence provided from the submitted hospital records to give notice of the essential facts constituting the claim. The mere possession of hospital records does not provide notice or an opportunity to investigate (Mandia v County of Westchester, 162 AD2d 217; Aviles v New York City Health and Hospitals Corporation, 172 AD2d 237). Based on the paucity of information provided, the Court is unable to find merit to this claim.

Accordingly, the Court concludes that the majority of the statutory factors weigh against movant's application. Therefore, movant's application for permission to file a late claim is denied. Movant has the opportunity, in a timely manner, to resubmit the motion to include both the appropriate medical records and an explanation of said records.

April 14, 2003
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims



[1]
The following papers have been read and considered on movants' motion for permission to file a late claim pursuant to Court of Claims Act §10(6): Notice of Motion dated October 30, 2002 and filed November 1, 2002; Affirmation of Larry Rosenfeld, Esq. in Support of Motion with annexed Exhibits A-D dated October 30, 2002 and filed November 1, 2002; Affirmation in Opposition of Rachel Goldberg, Esq. dated February 3, 2003 and filed February 7, 2003; Reply Affirmation of Larry Rosenfeld Esq., dated February 7, 2003 and filed February 13, 2003.