New York State Court of Claims

New York State Court of Claims

EHRLICH v. THE STATE OF NEW YORK, #2004-033-047, , Motion No. M-67533


Synopsis



Case Information

UID:
2004-033-047
Claimant(s):
LISA EHRLICH
Claimant short name:
EHRLICH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-67533
Cross-motion number(s):

Judge:
JAMES J. LACK
Claimant's attorney:
Sean Coonerty, Esq.
Defendant's attorney:
Eliot Spitzer, New York State Attorney General
Third-party defendant's attorney:

Signature date:
March 24, 2004
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a motion of Lisa Ehrlich (hereinafter "movant")[1] for permission to file a late claim pursuant to Court of Claims Act §10(6), relating to alleged negligence and medical malpractice arising out of the delivery and post-partum care of movant on the birth of her daughter on March 19, 2003 at the State University Hospital at Stony Brook (hereinafter "defendant").

The alleged acts of malpractice occurred during a cesarean section when a pad, 20 cm x 20 cm x .3 cm, was left inside movant. The pad was discovered on March 24, 2003, after several diagnostic procedures and the placement of an NG tube. An exploratory procedure was undertaken and the pad was removed.

Defendant has submitted no opposition to movant's motion.

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 failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State;

(5) whether movant has another available remedy; and

(6) whether the claim appears to be meritorious.


The Court in the exercise of its discretion balances these factors, and, as a general rule, the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979).

Movant attributes the delay in filing a claim was because she gave birth to her daughter after only a 24 week gestation period. Movant's daughter died thirty-one days after her birth. Movant claims that she was too emotionally distraught during the 90 day statutory notice period. According to the papers, this was movant's first pregnancy which terminated in the premature birth of her daughter. Movant was not released from the hospital until March 30, 2003, approximately six days after the discovery of the pad. Thereafter and until the time of the daughter's death, movant was concerned with the care and health of her daughter. Movant then had to deal with the grief of losing her child. The Court finds that movant has presented a reasonable excuse for not filing within the 90 day statutory period. Movant was clearly mentally incapacitated during this time (see Elting v State of New York, 8 AD2d 640).

The second, third and fourth factors (notice of the essential facts constituting the claim; an opportunity to investigate the circumstances underlying the claim; and whether the delay resulted in substantial prejudice to the State) are related. The Court will consider these factors together.

All of movant's medical records are maintained by the hospital, and the State has access to these records which would have provided it with notice of the essential facts and an opportunity to investigate (Rechenberger v Nassau County Medical Center, 112 AD2d 150). Therefore, there is no substantial prejudice to the State.

Movant does appear to have an alternative remedy, in that the doctors who performed the procedure could be sued personally.

While the presence or absence of any one of the six factors in not dispositive, (see Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979), the most critical factor always is the apparent merit of the proposed claim. The movant need only establish that the proposed claim is not patently groundless, frivolous or legally defective and there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). If a movant cannot meet this low threshold and the claim is patently without merit it would be meaningless and futile for the Court to grant the application even if all the other factors in Court of Claims Act §10(6) weighed in favor of the movant's request.

The Court is satisfied that the claim is meritorious. Movant's medical records which are attached to her papers indicate that the pad was left in movant.

As previously stated, defendant submits no opposition to the instant motion.

In conclusion, the majority of factors favor movant. Therefore, movant's application to file a late claim is granted. Movant shall serve and file the proposed claim within forty-five (45) days of the filing of this decision and order in accordance with §§10, 11 and 11-a of the Court of Claims Act.


March 24, 2004
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1]
The following papers have been read and considered on movant's motion to file a late claim pursuant to Court of Claims Act §10(6): Notice of Motion dated October 16, 2003 and filed October 16, 2003; Affirmation of Sean Coonerty, Esq., in Support of Motion with annexed Exhibits A-C dated October 7, 2003 and filed October 16, 2003; Affidavit of Lisa Ehrlich sworn to October 7, 2003 and filed October 16, 2003.