New York State Court of Claims

New York State Court of Claims

NORRIS v. THE STATE OF NEW YORK, #2004-033-076, Claim No. None, Motion No. M-68387


Synopsis



Case Information

UID:
2004-033-076
Claimant(s):
IRENE NORRIS and ROBERT NORRIS
Claimant short name:
NORRIS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-68387
Cross-motion number(s):

Judge:
JAMES J. LACK
Claimant's attorney:
The Law Office of David W. McCarthy
By: David W. McCarthy, Esq. and Margaret DeVivo, 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 is a motion of Irene Norris (hereinafter "movant") for permission to file a late claim pursuant to Court of Claims Act §10(6)[1], 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 near her.

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 movant's injuries.

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 979).

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 counsel.

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 merit.

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.


September 30, 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: Notice of Motion for Leave to Serve and File a Late Claim dated April 27, 2004 and filed May 3, 2004; Affidavit in Support of Irene Norris sworn to April 27, 2004 and filed May 3, 2004; Affirmation in Support of David W. McCarthy, Esq. with annexed Exhibit A dated April 27, 2004 and filed May 3, 2004; Affirmation in Opposition of Ellen Matowik, Esq. with annexed Exhibit A dated June 14, 2004 and filed June 15, 2004; Affirmation in Reply of Margaret DeVivo, Esq. with annexed Exhibits B-E dated July 13, 2004 and filed July 14, 2004.