This is a motion of Angela Laird and David Laird (hereinafter
for permission to file a late
claim pursuant to Court of Claims Act §10(6), relating to an alleged
medical malpractice occurring on April 20, 2002, when movant delivered a child
at University Hospital and Medical Center at Stony Brook (hereinafter "Stony
The allegation is that the physician in question failed to properly repair the
episiotomy which was created in connection with the delivery. It is alleged
that due to the failure to properly repair the episiotomy, the perineum of the
movant was caused to deteriorate, resulting in a condition known as a fistula
necessitating further surgical treatment (Affirmation of Peter D. Rosenberg,
Esq., pg. 2).
Movant's delivery was
accomplished via episiotomy by Dr. Kleopolous (first name unknown). Subsequent
to the episiotomy, she suffered a fourth degree laceration which required
repair. She was advised the repair was successful at the time of her discharge
on April 22, 2002, but soon after she began to experience medical problems. She
then went to her private ob/gyn physician and was diagnosed with recto vaginal
fistula. On September 25, 2002 she underwent further repair at New Island
Hospital (Affidavit of Angela Laird pg. 2).
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
(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;
(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
fall of 2002, she consulted an attorney regarding this matter, who investigated
and determined not to pursue it. In December 2002, she contacted her current
firm requesting an investigation be commenced (Laird Affidavit pg. 2).
While she was concerned with seeking treatment to correct her medical
condition, she has not included a physician's affidavit or medical records to
support her inability to timely file a claim (Goldstein v State of New
York, 75 AD2d 613). Indeed, the attorney movant first consulted could have
served a notice of intention to protect her interests. Movant claims she was
unfamiliar with the hospital facility and any applicable statutes. 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
and based on this consultation, the attorney is of "the good faith belief that
the within is a good and meritorious claim" (Affirmation of Peter D. Rosenberg,
Esq., pg. 4). 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 has not been 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.