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
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
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
(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)
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.