New York State Court of Claims

New York State Court of Claims

RABINOWITZ v. THE STATE OF NEW YORK, ET AL., #2003-033-006, Claim No. None, Motion No. M-66023


Synopsis

Late claim motion relating to alleged medical malpractice is denied.

Case Information

UID:
2003-033-006
Claimant(s):
SUSAN RABINOWITZ and ALAN RABINOWITZ
Claimant short name:
RABINOWITZ
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK, ET AL.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-66023
Cross-motion number(s):

Judge:
JAMES J. LACK
Claimant's attorney:
Rosenberg, Minc, Falkoff & Wolff, LLPBy: Peter D. Rosenberg, Esq.
Defendant's attorney:
Eliot Spitzer New York State Attorney GeneralBy: Katharine S. Brooks, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 6, 2003
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a motion of Susan Rabinowitz and Alan Rabinowitz (hereinafter "movant")[1] for permission to file a late claim pursuant to Court of Claims Act §10(6), relating to an alleged act of medical malpractice occurring on November 7, 2001, when movant delivered a child at University Hospital and Medical Center at Stony Brook (hereinafter "Stony Brook").[2]


At the time of delivery, movant was advised that an episiotomy was necessary and was further advised that it was successfully repaired prior to her discharge from the hospital. Thereafter, movant began to experience medical problems associated with the episiotomy, but continued to see the same physicians for several weeks in an effort to have the condition resolved (Affidavit of Susan Rabinowitz pg. 1-2)[3]. Ultimately, she consulted other physicians who advised her of the necessity for further surgical repair (id.). Movant alleges that due to the failure to properly repair the episiotomy, the perineum was caused to deteriorate resulting in a condition known as a fistula, necessitating surgical treatment (Affirmation of Peter D. Rosenberg pg. 4).

In order to determine 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).

Movant attributes her failure to timely file a claim to the fact that in the spring of 2002, she consulted an attorney regarding this matter, who investigated and determined not to pursue it. In October 2002, she contacted her current firm and requested an investigation be conducted (Rosenberg pg. 5). Movant further claims that she was initially concerned only with correcting her medical condition, but she has not included a physician's affidavit or medical records sufficient to support her inability to timely file a claim. (Goldstein v State of New York, 75 AD2d 613). In addition, the attorney movant first consulted could have served a notice of intention to protect her interests. Her ignorance of the law, especially of her attorney's failure to file is not a reasonable excuse (Sevillia v State of New York, 91 AD2d 792). Further, it appears that movant has a timely alternate remedy in Supreme Court against the attending physician.

The second, third and fifth factors (notice of the essential facts constituting the claim; an opportunity to investigate the circumstances underlying the claim; and whether the delay resulted in substantial prejudice to the State) are related. The Court will consider these factors together.

All of movant's medical records are maintained by the hospital and, the State has access to these records which would have provided the defendant with notice of the essential facts and an opportunity to investigate (Rechenberger v Nassau County Medical Center, 112 AD2d 150). Therefore, there is no substantial prejudice to the State.

While the presence or absence of any one of the six factors is not dispositive, (see Bay Terrace Coop. Section IV v New York State Employees' 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. The movant need only establish that the proposed claim is not patently groundless, frivolous or legally defective and there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). If a movant cannot meet this low threshold and the claim is patently without merit it would be meaningless and futile for the Court to grant the application even if all the other factors in Court of Claims Act §10(6) weighed in favor of the movant's request.

However, since movant is seeking permission to file a late claim in a medical malpractice action she must include a physician's affidavit in support of her application. The affidavit is necessary to establish the allegations of deviations from accepted standards (see Jolley v State of New York, 106 Misc 2d 550; Favicchio v State of New York, 144 Misc 2d 212). Counsel for movant merely avers that he had an oral consultation with an obstetrician/gynecologist and said physician allegedly opined that "there may very well be" deviations from accepted practice in the repair of the episiotomy (Reply Affirmation of Peter D. Rosenberg pg.3). But he has not included a physician's affidavit in the moving papers which is a well established requirement (see Colson v State of New York, 115 Misc 2d 402; Schreck v State of New York, 81 AD2d 882; Matter of Edwards v State of New York, 119 Misc 2d 355, 357).

The State asserts that the proposed claim does not contain sufficient particularization of its conduct as it relates to the allegations, and thus gives no clear notice as to what duties, if any, were owed to movant, all in violation of Section 11 of the Court of Claims Act (Heisler v State of New York, 78 AD2d 767). The proposed claim states the time and place where the claim arose and the nature of the action, and therefore, the Court finds it complies with Section 11 of the Court of Claims Act.

In conclusion, the second, third and fifth statutory factors favor movant's application with the most critical factor being the appearance of merit. However, since a physician's affidavit was not submitted, the application is legally defective. Therefore, I must deny movant's application for permission to file a late claim. However, movant has the opportunity in a timely manner to properly resubmit the motion to repair the defect.


May 6, 2003
Hauppauge, New York

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




[1]
All references to movant shall be to Susan Rabinowitz since the action of Alan Rabinowitz is derivative.
[2]
The following papers have been read and considered on movant's motion to file a late claim pursuant to Court of Claims Act §10(6): Notice of Motion dated November 6, 2002 and filed November 8, 2002; Affirmation of Peter D. Rosenberg, Esq. In Support of Motion, Affidavit of Susan Rabinowitz, with annexed Exhibit dated October 28, 2002 and filed November 8, 2002; Affirmation in Opposition of Katharine S. Brooks, Esq. dated January 21, 2003 and filed January 22, 2003; Reply Affirmation of Peter D. Rosenberg, Esq. dated February 5, 2003 and filed February 10, 2003.
[3]
References are to page numbers in movant's affidavit and attorney's affirmation because there are no numbered paragraphs.