New York State Court of Claims

New York State Court of Claims

CARDAMONE v. THE STATE OF NEW YORK, #2004-033-073, Claim No. 108437, Motion Nos. M-67946, M-68058, M-68392, CM-68203


Synopsis



Case Information

UID:
2004-033-073
Claimant(s):
DIANA CARDAMONE, Voluntary Administratrix of the Estate of ROSE SLAUGHTER a/k/a ROSEMARIE SLAUGHTER, deceased
Claimant short name:
CARDAMONE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108437
Motion number(s):
M-67946, M-68058, M-68392
Cross-motion number(s):
CM-68203
Judge:
JAMES J. LACK
Claimant's attorney:
Gair, Gair, Conason, Steigman & MackaufBy: Warren J. Willinger, Esq.
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Ellen Matowik, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 30, 2004
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim is brought by Diana Cardamone (hereinafter "claimant") as the voluntary administratrix of the Estate of Rose Slaughter a/k/a Rosemarie Slaughter (hereinafter "decedent") due to the alleged medical malpractice of the defendant, the State of New York (hereinafter "State").
The alleged malpractice occurred between September 19, 2002 and September 20, 2002, the date of decedent's death.

Decedent was a patient at University Hospital and Medical Center at Stony Brook and died during surgery on September 20, 2002. Claimant made a written request for decedent's medical record in October 2002. Claimant ordered the record again on November 5, 2002. On November 15, 2002, the hospital informed claimant that she needed to obtain Letters of Administration to obtain the records. On February 26, 2003, claimant was appointed as the voluntary Administratrix of decedent's estate. Claimant obtained her mother's medical records in May 2003. In July 2003, claimant retained counsel. On or about October 22, 2003, claimant served on defendant and filed with the Clerk of the Court a claim for damages.

In January 2004[1], claimant filed a motion to request permission to file a late claim. The claim was for pain and suffering and wrongful death. In response, defendant cross-moved to dismiss the claim and asked that claimant's motion be denied. On April 6, 2004, the Surrogate's Court granted claimant Letters of Administration in regard to decedent's estate. On April 12, 2004 and April 21, 2004, claimant served and filed a claim for wrongful death (Claim No. 109216). On April 15, 2004, claimant filed another motion for permission to file a late claim for pain and suffering[2].

One of defendant's arguments in its original opposition was that claimant had no standing to file a claim since she was a voluntary administratrix and had not been granted Letters of Administration. As noted, claimant was granted Letters of Administration on April 6, 2004.

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 6, 2004 and within 90 days served the defendant with a claim. A claim for conscious pain and suffering is untimely unless it is served and filed within 90 days of the date of accrual (Court of Claims Act §10(3)).

Based upon the timely filed claim for wrongful death (Claim No. 109216), the Court will deny as moot claimant's January 26, 2004 motion (M-67946), but grant defendant's March 19, 2004 cross-motion (CM-68203) as to Claim No. 108437. The Court will also dismiss as moot claimant's February 19, 2004 motion (M-68058).

The Court turns its attention to claimant's request to file a late claim pursuant to Court of Claims Act §10(6). Movant 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 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).

Claimant attributes her delay to a variety of excuses. One excuse is defendant's delay in providing decedent's medical chart. After the chart was provided, claimant, a nurse, took time to review it prior to retaining counsel. Another reason for the delay is that claimant was sick with pneumonia and her grandmother died.

A delay in obtaining the medical records is a valid excuse for failing to file and serve a certificate of merit (CPLR 3012-a(d)). However, this delay need not keep claimant from serving 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 and serving a claim or notice of intention as to the claim for conscious pain and suffering are attributable to 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).

It appears that movant has an alternate remedy, that being the 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 and served, 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 other factors in the Court of Claims Act § 10(6) weighed in favor of the claimant's request. 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. Claimant is directed to serve and file the 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.



September 30, 2004
Hauppauge, New York

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




[1]Due to the number of motions filed in this case, the Court will refer to the dates the motions were originally filed in the Clerk's office. All of the motions were finally submitted for review in June 2004.
[2]The following papers have been read and considered on claimant's motions and defendant's cross-motion: Notice of Motion dated January 22, 2004 and filed January 26, 2004; Affidavit of Diana Cardamone with annexed Exhibits A-F sworn to January 16, 2004 and filed January 26, 2004; Affirmation in Support of Warren J. Willinger, Esq. with annexed Exhibits A-D dated January 20, 2004 and filed January 26, 2004; Supplemental Notice of Motion dated February 17, 2004 and filed February 19, 2004; Affirmation in Support of Warren J. Willinger, Esq. with annexed Exhibits A-B dated February 17, 2004 and filed February 19, 2004; Notice of Cross-Motion to Dismiss dated March 17, 2004 and filed March 19, 2004; Affirmation in Support of Cross-Motion to Dismiss and in Opposition to Claimant's Motion of Ellen Matowik, Esq. with annexed Exhibits A-G dated March 17, 2004 and filed March 19, 2004; Notice of Motion dated April 12, 2004 and filed April 15, 2004; Affirmation in Support of Warren J. Willinger, Esq. with annexed Exhibits E-F dated April 12, 2004 and filed April 15, 2004; Affidavit of Diana Cardamone sworn to April 12, 2004 and filed April 15, 2004; Affirmation in Opposition of Ellen Matowik, Esq. dated May 13, 2004 and filed May 20, 2004; Reply Affirmation of Warren J. Willinger, Esq. with annexed Exhibits A-B dated June 1, 2004 and filed June 3, 2004.