New York State Court of Claims

New York State Court of Claims

DINOFF v. STATE OF NEW YORK, #2004-018-285, Claim No. NONE, Motion No. M-66990


Case Information

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:
Defendant's attorney:
Attorney General of the State of New York
Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 5, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant[1] filed a claim on June 9, 2003, alleging medical malpractice[2] committed by

employee/physician, Craig T. Montgomery, M.D., of the Upstate Medical University College of Medicine. It is alleged that Dr. Montgomery operated on claimant on January 30, 2001, and as a result, she required four additional surgeries and contracted meningitis. Claimant remained in Dr. Montgomery's care until June 2002. The claim asserts an accrual date of June 1, 2003, the date claimant discovered the malpractice. The claimant's position is that Dr. Montgomery misrepresented the cause of claimant's condition, blaming the problems that developed after the first surgery on claimant's coughing, thereby preventing her from learning of his negligence.

The State interposed an answer which contains general denials to the allegations in the claim. It also contained the following fifth affirmative defense:
Claimant's action is barred by reason of the expiration of the

applicable statute of limitations. More particularly, claimant

at no time served a Notice of Intention to File a Claim as

required by §§ 10 and 11 of the Court of Claims Act and

certainly claimant did not file a Notice within 90 days of the

events of the dates mentioned in the claim.

Apparently, in response to this defense, claimant now moves this Court for permission to file a late claim pursuant to Court of Claims Act § 10(6). Normally, a timely filed claim would render a late claim motion moot; however, there has been no cross-motion to dismiss the claim on the basis of untimeliness. Therefore, the issue of the claim's timeliness is not before the Court. As a result, the Court will address the late claim motion.

The initial determination the Court must make is whether this late claim application is timely. Pursuant to Court of Claims Act § 10(6), a motion for permission to bring a late claim must be brought within the time limitations set forth in Article Two of the CPLR commencing a like action against a citizen of the State. Claimant's attorney has attached records evidencing claimant was still treating with Dr. Montgomery on April 5, 2001. Claimant asserts that she treated with Dr. Montgomery until June 2002. This application was served on June 18, 2003, well within two-and-one-half years of either date, making this application for permission to file a late claim based upon medical malpractice timely (Court of Claims Act § 10[6]; CPLR 214-a).

Next, the Court reviews the six factors which it must consider pursuant to Court of Claims Act § 10(6), in determining whether to permit the late filing. These factors are:

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 upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the State,

6) whether there is any other available remedy.

The fourth factor, whether the claim appears to be meritorious, will be addressed first as this factor has been held to be pivotal in deciding whether or not to allow a late claim to be filed, as it would be fruitless to allow a proposed claim without merit to proceed, even if the other factors have been met (see Prusack v State of New York, 117 AD2d 729; Jolley v State of New York, 106 Misc 2d 550). The proposed claim appears to be meritorious when it is not patently groundless, frivolous, or legally defective, and the Court finds that there is reason to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11).

The State's attorney's affirmation, in opposition, raises a significant issue with the potential meritoriousness of the proposed claim, specifically, the absence of any State involvement. Dr. Montgomery, although an Assistant Professor of Neurological Surgery at Upstate Medical University, never treated claimant at a State facility. All of claimant's hospitalizations and surgeries were at St. Joseph's Hospital and Health Care Center. All of her follow-up visits were at Dr. Montgomery's private offices. Defendant asserts Dr. Montgomery is associated with a private corporation, Neurosurgical Medical Services Fund, LLP. There is no indication claimant had any knowledge, prior to this claim, that Dr. Montgomery had any relationship with the State. In fact, in her supporting affidavit, she affirmatively states, "I did not see Dr. Montgomery at Upstate hospital and so I did not connect him with it."[3]

In response to defendant's opposition papers, claimant's counsel has attached copies of letters Dr. Montgomery sent to another doctor, Dr. Stephen Robinson, discussing clamant's treatment. These letters reference Dr. Montgomery's position with Upstate Medical University and are written on stationery with the Upstate Medical University seal. Three addresses for Dr. Montgomery are also listed on the stationery, one at Upstate Medical University, one at Crouse Hospital Physician Office Building, and one at St. Joseph's Physician Office Building. Claimant argues that Dr. Montgomery has held himself out as being associated with the State and the State is liable on apparent authority for having supplied the stationery.

To establish liability of the principal on a theory of apparent authority, "words or conduct of the principal, communicated to a third party give[ing] rise to the appearance and belief that the agent possesses authority..." to act on behalf of the principal is required (Hallock v State of New York 64 NY2d 224, 231). There must be "a factual showing that the third party relied upon the misrepresentation of the agent because of some misleading conduct on the part of the principal - not the agent"(Hallock v State of New York, supra, quoting Ford v Unity Hosp., 32 NY2d 464, 473).

Here, accepting claimant's assertion for the moment that the State provided Dr. Montgomery with the stationery with Upstate Medical University letterhead, there is no evidence or claim that correspondence with this letterhead was sent or given to claimant, or that she in anyway relied upon Dr. Montgomery's affiliation with the State. In fact, just the opposite is true. Claimant affirmatively stated in her affidavit that she had no knowledge that Dr. Montgomery was employed by the State. Here, there was no misrepresentation and there is no appearance of merit to claimant's assertion the State could be held liable on an agency theory for this claim.

Additionally, because of the lack of State involvement, there was no notice or opportunity to investigate this claim. Claimant also has a viable alternative remedy in her pending Supreme Court action against Dr. Montgomery, individually, and St. Joseph's Hospital.

Based upon the foregoing consideration of the factors claimant's application is DENIED.

February 5, 2004
Syracuse, New York

Judge of the Court of Claims

[1] The Court will refer to Ms. Dinoff as claimant as opposed to movant because of the existence of the filed claim, Claim No. 107840.
[2]There is also a cause of action alleging a lack of informed consent.
[3]See claimant's affidavit ¶ 4. This was included to support claimant's excuse for not filing a claim timely.