New York State Court of Claims

New York State Court of Claims

REGENSBURGER v. THE STATE OF NEW YORK, #2004-033-052, Claim No. 108010, Motion No. M-67385


Synopsis



Case Information

UID:
2004-033-052
Claimant(s):
ERIKA REGENSBURGER, As Administratrix of
the Estate of WERNER REGENSBURGER, andERIKA REGENSBURGER, Individually
Claimant short name:
REGENSBURGER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108010
Motion number(s):
M-67385
Cross-motion number(s):

Judge:
JAMES J. LACK
Claimant's attorney:
Brand, Brand & BurkeBy: Brett J. Nomberg, Esq.
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Ellen Matowik, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 29, 2004
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This claim is brought by Erika Regensburger (hereinafter "claimant") as the administratrix of the estate of Werner Regensburger (hereinafter "decedent") due to the alleged medical malpractice of the defendant, the State of New York (hereinafter "State"). The alleged malpractice occurred between January 27, 2003 and February 10, 2003, the date of decedent's death. Claimant was appointed as administratrix on April 28, 2003. Thereafter, on July 11, 2003, claimant served a claim upon the State for wrongful death, conscious pain and suffering and loss of consortium. Defendant interposed an answer which contained an affirmative defense that this Court lacks jurisdiction over the claim for pain and suffering because it was not timely filed. Claimant files this motion seeking alternative relief, asking the Court to: deem the first and second causes of action for conscious pain and suffering to be timely served pursuant to Court of Claims Act §10(5); grant claimant permission to file a late claim as to conscious pain and suffering and loss of consortium; or permitting the first and second causes of action to be deemed served nunc pro tunc.[1]

Court of Claims Act §10(2) states that a claim for wrongful death shall be served on the attorney general and filed with the clerk of the court within 90 days of an appointment of an executor or administrator, unless within such time claimant has served a notice of intention upon the State. No controversy exists in this matter as to the timeliness of claimant's wrongful death action. Claimant was appointed as the administratrix of decedent's estate on April 28, 2003 and within 90 days served the defendant with a claim. A claim for conscious pain and suffering is untimely unless it is served within 90 days of the date of accrual (Court of Claims Act §10(3)).

Court of Claims Act §10 (5) states that "[i]f the claimant shall be under legal disability, the claim may be presented within two years after such disability is removed". Claimant argues that while decedent was in the hospital he was incapacitated and, therefore, under a legal disability. Defendant opposes claimant's motion, stating that claimant has failed to prove that the decedent was "mentally incompetent". The Court is unable to find a case on point and neither party has provided more than conclusory language in their affirmations or memoranda of law. In examining the line of cases having to do with a "legal disability", the Court finds only those cases dealing with infancy and mental incompetence. These disabilities are those that are defined in CPLR 208. The only other recognized legal disability was that of a married woman which was terminated by an amendment to the Civil Procedures Act in 1870 (Clarke v Gibbons, 83 NY 107).

There is no doubt that the decedent was physically incapacitated, however, at the time of this incapacity he was not "legally disabled". A claim for conscious pain and suffering is untimely unless it is served within 90 days of the date of accrual (Court of Claims Act §10(3); Bourguignon v City of New York, 157 AD2d 644). The Court must deny claimant's motion to deem the first and second causes of action as timely filed pursuant to Court of Claims Act §10(5).

The Court turns its attention to claimant's request to file a late claim pursuant to Court of Claims Act §10(6). Claimant seeks permission to file a late claim against the State of New York for conscious pain and suffering.
In determining a motion seeking permission to file a late claim, the Court must consider the following six enumerated factors listed in Court of Claims Act §10(6): (1) whether the delay in filing 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 and serve a timely claim or serve a notice of intention resulted in substantial prejudice to the State ; (5) whether the movant has any other available remedy; and (6) whether the claim appears 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).

Claimant attributes her failure to the defendant's delay in providing decedent's medical chart. The chart was not provided to claimant in a timely fashion to allow claimant's expert to adequately review and assess it.

A delay in obtaining the medical records is a valid excuse for failing to file a certificate of merit (CPLR 3012-a(d)). However, this delay need not keep claimant from filing a notice of intention prior to the full extent of the injuries being known (Leung v State of New York, motion no. M-49070 [Silverman, J., Ct Cl]). Court of Claims Act §11(b) states that the items of damage and the sum claimed may be excluded from a notice of intention.

Claimant's delay in timely filing a claim or notice of intention as to the claims for conscious pain and suffering are attributable to law office ignorance. The ignorance of the law of Claimant's attorney is not a reasonable excuse (see Sevillia v State of New York, 91 AD2d 792).

Claimant's attorney argues in his reply affirmation that the State only argues against the reasonableness of claimant's excuse in its answer to claimant's motion. The Court finds that defendant asserts no other arguments against claimant's motion for a late claim. The Court will briefly review the other factors in regard to claimant's motion.

It appears that claimant has an alternate remedy, that being her ability to sue the individual doctors who claimant believes to be responsible. It appears, the first and fifth factors disfavor the application.

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.

As the wrongful death action was timely filed, the State had notice of the incident with sufficient time to investigate the matter. The Court finds no substantial prejudice to the State. Accordingly, these three factors favor the application.

While the presence or absence of any one factor is 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 is the apparent merit of the proposed claim. A 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 (see 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 the Court of Claims Act § 10(6) weighed in favor of the movant's request. As previously mentioned the State does not argue against the appearance of merit. The Court, based on claimant's papers and exhibits, finds there is an appearance of merit.

Based on the foregoing, the Court concludes that the statutory factors favor claimant's application and, therefore, grants permission to file a late claim as to the conscious pain and suffering, as well as the derivative action for loss of consortium. Claimant is directed to serve the attorney general and file the claim in the clerk's office within forty-five (45) days of the date of this decision and order in accordance with §§10, 11 and 11-a of the Court of Claims Act.



March 29, 2004
Hauppauge, New York

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




[1]The following papers have been read and considered on claimant's Notice of Motion: Notice of Motion dated September 15, 2003 and filed September 16, 2003; Attorney's Affirmation of Brett J. Nomberg, Esq., in Support of Motion with annexed Exhibits A-E dated September 15, 2003 and filed September 16, 2003; Memorandum of Law in Support of Brett J. Nomberg, Esq. dated September 15, 2003 and received September 16, 2003; Affidavit in Support of Erika Regensburger sworn to September 13, 2003 and filed September 18, 2003; Affirmation in Opposition of Ellen Matowik, Esq. dated November 3, 2003 and filed November 5, 2003; Reply Affirmation of Brett J. Nomberg, Esq. dated November 25, 2003 and filed November 26, 2003.