New York State Court of Claims

New York State Court of Claims

PARKS v. STATE OF NEW YORK, #2004-018-288, Claim No. NONE, Motion No. M-67611


Synopsis


Case Information

UID:
2004-018-288
Claimant(s):
PAUL PARKS
Claimant short name:
PARKS
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-67611
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
THE LAFAVE LAW FIRM, PLLCBy: Cynthia S. LaFave, Esquire
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: Edward F. McArdle, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
February 11, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Movant brings a timely motion for permission to file a late claim pursuant to Court of

Claims Act § 10(6). Defendant opposes the relief. Movant brought a prior late claim application (M-66849) which was denied without prejudice and this application addresses the deficiencies noted by the Court in its earlier decision. This decision and order will address the supplemental information provided with this application and should be read in conjunction with this Court's prior decision and order dated September 4, 2003.

The proposed claim (paragraphs 4-7) asserts both medical malpractice and ordinary negligence causes of action for injuries movant suffered on March 18, 2002 while being treated at the Emergency Department at the State University of New York, Upstate Medical University (hereinafter University Hospital), after his involvement in a motor vehicle accident. Movant was evaluated by an attending physician, and after undergoing various tests, he suffered a "syncopal episode" fell and struck his head. The claim seeks damages as a result of the defendant's negligent training and hiring, negligent custody and care, negligent care, treatment and diagnosis, violation of statutory duties, of both State and Federal law, and vicarious liability for acts and omissions of defendant's agents, servants and/or employees.

On an application for permission to file a late claim, consideration must be given to the six factors listed in Court of Claims Act § 10(6), and any other relevant factors. A balancing of all of the factors in the discretion of the Court may warrant the granting of the application to file and serve a late claim; no one factor is determinative (Bay Terrace Cooperative Section IV, Inc., v New York State Employees' Retirement System, Policemen's and Firemen's Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965).

Movant provides no new information, and the Court's prior decision on the factors of whether a valid excuse has been presented for the delay in filing and serving a claim, whether the State had notice of the underlying facts, an opportunity to investigate, and whether it will suffer substantial prejudice stands as determined in that decision and order.

Turning to the issue of the potential meritoriousness of the proposed claim, this factor is met if it is not patently groundless, frivolous, or legally defective, and upon consideration of the entire record there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11). Movant's current application provides an affidavit[1] from a physician board certified in emergency medicine supporting his medical malpractice claim. This physician sets forth movant's presenting symptoms which should have alerted University Hospital staff of the risk of movant suffering a syncopal incident. The doctor states that the failure to take action to protect movant from falling if he became unconscious, given his symptoms, was a deviation from acceptable standards of care. The deviation from acceptable practice caused movant to suffer injuries. Based upon this affidavit, the Court finds movant's medical malpractice cause of action has met the Santana standard (see Schreck v State of New York, 81 AD2d 882; Favicchio v State of New York, 144 Misc 2d 212; Colson v State of New York, 115 Misc 2d 402). The Court's earlier decision determined that movant's ordinary negligence cause of action was potentially meritorious.

The final factor, is whether movant has any other remedy. Movant has sued the driver of the other vehicle involved in the accident, which occasioned movant's treatment at the University Hospital Emergency Room, in the first place. Movant's counsel asserts, however, that the driver and owner of the vehicle will likely argue, in defense, that the injuries movant suffered were the result of his treatment at the hospital, and the owner of the vehicle's insurance policy is limited. Any remedy fashioned through this other lawsuit, will be only a partial remedy, but it is still another potential remedy.

Upon reviewing movant's new submissions, this Court GRANTS movant's late claim motion. Movant is directed to file and properly serve the proposed claim within 45 days of the date this decision and order is filed with the Clerk of this Court in accordance with all applicable statutes and Court rules.


February 11, 2004
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims



The Court has considered the following documents in deciding this motion:


Notice of Motion...................................................................................................1


Affirmation of Cynthia S. LaFave, Esquire, in support, with exhibits

attached thereto..........................................................................................2


Affidavit of merit of Paul Parks.............................................................................3


Answering Affirmation of Edward F. McArdle, Esquire, Assistant Attorney
General, in opposition, with exhibit attached thereto.................................4


Reply Affirmation of Benjamin H. Rondeau, Esquire, in support..........................5


[1] Movant attached a redacted affidavit to his motion papers, however a complete copy was provided to the Court.