This is a motion of Irene Norris (hereinafter "movant") for permission to file
a late claim pursuant to Court of Claims Act
, relating to an alleged medical
malpractice occurring on April 15, 2003, when movant was taking a stress test at
University Hospital and Medical Center at Stony Brook (hereinafter "Stony
Brook). The claim of Robert Norris is derivative in nature.
Movant was undergoing a stress test on April 15, 2003 at Stony Brook. The test
consisted of movant walking on a treadmill. After an increase in speed, movant
told employees present that she was experiencing a shortness of breath. Movant
was told to keep up the pace with the treadmill at its current speed. The next
thing movant can remember is waking up on the floor with defendant's employees
Attached to movant's reply papers are: a certificate of merit; a physician's
affirmation indicating that it was a departure from good and accepted medical
practice in failing to terminate the test when movant complained of shortness of
breath; and, a physician's affirmation indicating that it was within a
reasonable degree of medical certainty that the fall from the treadmill caused
The Court turns its attention to movant's request to file a late claim pursuant
to Court of Claims Act §10(6).
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
Movant attributes the delay in filing a claim to her injuries as a result of
this incident. Movant also excuses her delay because of problems with her first
law firm. However, the Court notes that movant's time to file a claim or notice
of intention had already expired by the time she first went to her previous
It does not appear that movant has an alternate remedy in Supreme Court.
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 them 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.
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,
supra), 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.
After reviewing movants' papers and exhibits, including the physicians'
affirmations, the Court finds that movants have established an appearance of
Accordingly, this Court grants movants' application for permission to file a
late claim. The movants are directed to serve and file the claim, pursuant to
Court of Claims Act §§10, 11, and 11-a within forty-five (45) days of
the filing of this decision and order.