New York State Court of Claims

New York State Court of Claims

ROMANO v. STATE OF NEW YORK, #2004-018-446, Claim No. NONE, Motion No. M-68859


Motion to file late claim granted.

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:
POWERS & SANTOLA, LLPBy: Timothy J. Higgins, Esquire
Defendant's attorney:
Attorney General of the State of New York
By: Maureen A. MacPherson, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
November 29, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Movant, Michelle Romano, as Administratrix of the Estate of Michael J. Romano, brings

a timely motion seeking permission to file a late claim pursuant to Court of Claims Act §10(6)(CPLR 214-a; Estates, Powers and Trusts Law §5-4.1). Defendant opposes the motion.

The proposed claim asserts that decedent, Michael J. Romano (hereinafter referred to as decedent) presented to the Emergency Room at State University of New York Upstate Medical University Hospital (hereinafter University Hospital) on September 24, 2002. He was evaluated at that time and discharged. On September 27, 2002, he was again evaluated at University Hospital Emergency Room, was admitted, and remained a patient at the hospital until November 20, 2002. Decedent died on February 15, 2003, allegedly as a result of injuries he sustained during his treatment at University Hospital. Movant, individually, and as Administratrix of the Estate, seeks to interpose a claim for decedent's pain and suffering and his wrongful death based upon the State's alleged medical malpractice.

On an application for permission to file a late claim, the Court considers the six factors listed in Court of Claims Act §10(6), and any other relevant factors. 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). After balancing all of the factors the Court, in its discretion, may grant the application and permit the filing and serving of the late claim.

The first factor is whether the proposed claimant has an acceptable excuse for failing to timely file and serve a claim. Movant's application indicates that a timely notice of intention was served upon the attorney general on December 20, 2002, asserting a potential claim for the negligence of the State as a result of decedent's medical care at University Hospital on September 24, 2002. Defendant acknowledges service of this notice of intention. Service of the notice of intention extended the time within which to file and serve a claim for decedent's personal injuries until September 24, 2004. Thus, at the time this late claim application was filed, decedent's personal injury action and the derivative action were still timely. The cause of action for decedent's wrongful death, however, was not. No notice of intention was served and no claim was filed and served within 90 days of July 8, 2003, (the date of the issuance of the Limited Letters of Administration) making Movant's cause of action for wrongful death untimely. Movant's counsel attributes the failure to timely file and serve a claim to law office failure, which is not an acceptable excuse (see Sessa v State of New York, 88 Misc 2d 454, 459, affd 63 AD2d 334, affd 47 NY2d 9976). However, the failure to meet all six factors is not prohibitive.

Now the Court will turn to the factors of the State's notice of the facts underlying the proposed claim, whether it had an opportunity to investigate the facts, and whether it will suffer prejudice if the application is granted. Movant's counsel asserts that given the fact a notice of intention was timely served, and medical records exist to assist in determining what treatment decedent received, these factors weigh in favor of granting this application. The Court agrees. Although Defendant points to the fact that the notice of intention only gave notice of the potential for a personal injury claim and not the wrongful death cause of action, since the basis for both causes of action arise from decedent's treatment at University Hospital from September 20, 2002 until November 20, 2002, the notice of intention provided Defendant with notice of the facts underlying the claim. With prompt notice is the opportunity to investigate and the absence of substantial prejudice if a late claim is permitted to be filed.

The next factor, whether the claim appears to be meritorious, is referred to as the most essential factor. Unlike a party who has timely filed a claim, one seeking permission to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199). Generally a proposed claim meets this standard 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). The basis for Movant's claim is the medical malpractice of the Defendant in failing to timely and properly diagnose a subarachnoid hemorrhage and an intracerebral aneurysm when decedent presented at the emergency room of University Hospital on September 24, 2002. It is alleged that the misreading of a CAT scan on that day led to decedent being discharged. Later, a second reading of the CAT scan suggested a possible small subarachnoid hemorrhage. Decedent was asked to return to the hospital and after a lumbar puncture revealed bloody spinal fluid, he was seen by a neurosurgeon and surgery was performed on September 28, 2002 to clip an intracerebral aneurysm. Decedent later suffered a stroke. His condition, complicated by kidney disease, kidney dysfunction and infection, ultimately resulted in his death.

Movant has attached with this application, copies of the University Hospital Emergency Department records from September 24, 2002, the preliminary radiology report, the final radiology report dated September 25, 2002, the follow-up record dated September 26, 2002, and the Emergency Department records from September 27, 2002. Also provided are affirmations[1] of merit from a physician, board certified in emergency medicine, and a physician, board certified in neurosurgery. Although, as Defendant aptly points out, these affirmations do not establish every element of Movant's medical malpractice cause of action, there is certainly ample indication that Movant has met her minimal burden on an application for permission to file a late claim to show that the proposed claim is potentially meritorious. The affirmation from the doctor of emergency medicine indicates that it was a deviation from good and accepted medical practice to discharge decedent on September 24, 2002, given his symptoms on presentation, the CAT scan results, and decedent's history of hypertension and kidney disease, which placed him at increased risk of aneurysmal rupture and subarachnoid hemorrhage. The affirmation of the neurosurgeon asserts that the original reading of decedent's CAT scan result was in error. The neurosurgeon asserts that a proper diagnosis of the subarachnoid hemorrhage on September 24, 2002, would have permitted surgical intervention one to three days earlier, greatly reducing the risk of vasospasm and further brain hemorrhage. The delay in proper diagnosis and surgical intervention, according to the neurosurgeon, were substantial factors leading to decedent's subsequent stroke, vegetative state, and death. This factor weighs in favor of Movant's application.

The final factor to be considered is whether Movant has any other available remedy. Defendant shows that Movant has commenced an action in Supreme Court against the individual physicians and, thus, has another available remedy. This factor weighs against granting Movant's application.

Upon balancing all of the factors in Court of Claims Act §10(6), this Court GRANTS the motion. Movant is directed to file and serve the proposed claim, in accordance with the Court of Claims Act and all applicable rules of the Court, and to pay the filing fee or submit a motion in accordance with Court of Claims Act § 11-a, within 30 days of the date this Decision and Order is filed. Prior to service and filing, the caption of the claim should be corrected to reflect that the action is brought by Michelle Romano, as Administratrix of the Estate of Michael J. Romano, and Michelle Romano, individually, against the State of New York.

November 29, 2004
Syracuse, New York

Judge of the Court of Claims

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

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

Affirmation of Timothy J. Higgins, Esquire, in support, with exhibits

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

Affirmation of Maureen A. MacPherson, Esquire, Assistant Attorney

General, in opposition, with exhibit attached thereto..............................3

Reply Affirmation of Timothy J. Higgins, Esquire, in support...........................4

[1]The names of the physicians were redacted from Defendant's copy of the moving papers.