New York State Court of Claims

New York State Court of Claims

FLOBECK v. THE STATE OF NEW YORK, #2003-033-018, , Motion No. M-66381


Movant's application to file late claim granted in medical malpractice action.

Case Information

DONNA FLOBECK, as Administrator for the Estate RUSSELL FLOBECK, and DONNA FLOBECK, individually
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Law Office of James J. McCrorieBy: James J. McCrorie, 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:
June 30, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


This is a motion of Donna Flobeck, as Administrator for the Estate of Russell Flobeck, and Donna Flobeck, individually (hereinafter "movant") for permission to file a late claim (by resubmittal of a prior application) pursuant to Court of Claims Act §10(6), relating to an alleged act of medical malpractice/misdiagnosis and resulting loss of services.[1]

This is also a wrongful death action. The 90 days to file a claim for wrongful death begins to accrue after the appointment of an Administrator (Court of Claims Act §10(2)). Letters of Administration were issued to movant on November 8, 2002. The claim was filed with the Court on January 31, 2003.

A decision and order on the original motion for permission to file a late claim was filed on January 10, 2003 by the Hon. Susan Phillips Read. Judge Read denied the motion on the grounds that it was legally defective because a physician's affidavit should have been submitted in the alleged medical malpractice action.

As recited in Judge Read's decision, Russell Flobeck (hereinafter" Flobeck") began treatment at Stony Brook University Hospital (hereafter "Stony Brook") in August 1997 for severe headaches and visual disturbances. Both he and movant were told there was not a tumor in his head/brain and that he just had a mucus mass known as a "sphenoid mucocele" which was not life threatening. On August 26, 1997, a surgical procedure, a "transnasal drainage of sphenoid sinus mucocele endoscopic sphenoidectomy" was performed.

Flobeck continued treatment under the supervision of Stony Brook until February 26, 2002 for "chronic sinusitis and sphenoid sinus mucocele". He had two additional surgical procedures on February 10, 2000 and January 21, 2002 for sphenoid sinus mucocele-recurrent.

On January 15, 2002, Flobeck had a full seizure and an MRI showed a recurrence of the mucocele, which abutted his temporal lobe. On or about February 26, 2002, he consulted with surgeons at Sloan-Kettering Hospital (hereafter "Sloan-Kettering"). After further consulting with physicians from both Sloan-Kettering and New York Cornell Hospitals, he was informed that he did, in fact, have a tumor. Movant was informed that the tumor was visible on the 1997 MRI films and all subsequent films taken at Stony Brook.

On or about March 27, 2002, Flobeck had surgery at Sloan-Kettering revealing that he had a tumor that had wrapped itself around an artery. On April 5, 2002, he died after his brain swelled.

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.

In the prior motion, Judge Read found that the first and sixth factors disfavored the application. It was decided that movant's ignorance of the law was not a reasonable excuse and movant had an alternative remedy by bringing a lawsuit in Supreme Court against Flobeck's attending physicians.

In movant's favor Judge Read found that the hospital records provided defendant with notice of the essential facts and an opportunity to investigate and there did not appear to be substantial prejudice to the State.

The most critical factor to consider is the appearance of merit. As a general rule, "a physician's affidavit or affirmation must be submitted to permit the late filing of a claim against the State for medical malpractice, a demonstration of the claim's apparent merit being an essential prerequiste to the granting of permission to file a late claim" (Jolley v State of New York, 106 Misc 2d 550).

The initial application was found to be legally defective because a physician's affidavit was not submitted to establish any departures from accepted standards. Movant was given the opportunity to resubmit her application upon proper papers. Annexed as Exhibit 6 to the Affirmation of James J. McCrorie, Esq., is an Affirmation of Aric Hausknecht, M.D. In ¶2 of his affirmation, the doctor states that upon review of relevant medical records, he concludes there is a meritorious case against the State of New York, Stony Brook and several of the doctors. He further states, there is a meritorious case against pathologists at Stony Brook. Also in ¶3, his preliminary analysis shows that "there were numerous departures from accepted standards of medical practice which were substantial factors in bringing about Russell Flobecks (sic) death...."

In opposition to claimant's motion, the State relies on Favicchio v State of New York, 144 Misc 2d 212 and Jolley v State of New York, 106 Misc 2d 550. In Jolley, claimant failed to submit any medical affidavit of a doctor and relied on the statements of claimant's attorney. The attorney stated that the medical records had not been reviewed but that based upon his experience malpractice had taken place. In Favicchio, the court refers to the expert opinion which simply states that the medical records of the movant were examined and it is the expert's opinion that malpractice occurred. The court held that the affidavit failed to show when or how the malpractice occurred and was thus insufficient.

However, in the case at bar, movant's attorney discusses the facts of the case at length and states that the basis for the malpractice is the misdiagnosis of a tumor in the movant's brain. In conjunction with the facts is the opinion of movant's expert that states malpractice occurred. The Court finds the affirmation, under the circumstances of this case, to be sufficient. To hold otherwise would require a further application to this Court by movant with another physician's affidavit, which movant could still accomplish in a timely fashion. However, such further application would still be in addition to the allegations in movant's basic claim. I see no reason to put movant through such a burden and would prefer, instead, to move on to the consideration of the merits of the claim itself.

Accordingly, this Court grants movant's application for permission to file a late claim. The movant is directed to serve and file the claim, pursuant to Court of Claims Act §§10,11 and 11-a within forty-five (45) days of the filing date of this decision and order.

June 30, 2003
Hauppauge, New York

Judge of the Court of Claims

The following papers have been read and considered on movant's resubmittal motion for permission to file a late claim pursuant to Court of Claims Act §10(6): Notice of Motion dated January 31, 2003 and filed February 6, 2003; Affirmation of James J. McCrorie, Esq., in Support of Motion with annexed Exhibits 1-6 dated January 31, 2003 and filed February 6, 2003; Affirmation in Opposition of Katharine S. Brooks, Esq., with annexed Exhibit A dated March 4, 2003 and filed March 7, 2003.