This is a motion of Andrew Gressler, an infant by his mother and natural
guardian Susan Gressler, Susan Gressler, individually and by Frank Gressler
for permission to file
a late claim pursuant to Court of Claims Act
, relating to an alleged medical
malpractice occurring on October 29, 2003, when movant delivered a child at
University Hospital and Medical Center at Stony Brook (hereinafter "Stony
Brook"). The allegation is that the physicians in question failed to properly,
timely and adequately assess the needs of movant and infant movant; as well as
failing to properly manage movant's labor and improperly performing a cesarean
Prior to going further, the Court will deny that portion of movant's motion
which seeks to file a late claim on behalf of Andrew Gressler. As Andrew is an
infant, an application for a late claim is unnecessary. The infant movant may
file his claim in a timely fashion without the Court's permission.
The Court now turns its attention to the remaining movants.
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
(3) whether the State had an opportunity to investigate the circumstances
underlying the claim;
(4) whether the claim appears to be meritorious;
(5) whether the failure to file or serve a timely claim or serve a timely
notice of intention resulted in substantial prejudice to the State;
(6) whether the movant has another available remedy.
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 her failure to timely file a claim to the fact that she was
concerned with seeking treatment to correct her medical condition, but has not
included a physician's affidavit or medical records to support her inability to
timely file a claim (Goldstein v State of New York, 75 AD2d 613). In
addition, movant states she was unable to obtain her medical records from
defendant. The delay in obtaining the records 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, 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 ignorance. Ignorance of the law is not a
reasonable excuse (see Sevillia v State of New York, 91 AD2d 792).
Further, it appears that movant has a timely alternate remedy in Supreme Court
against the attending physician.
The second, third and fifth 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 Stony Brook, and the State
has access to these records which would have provided defendant with notice of
the essential facts and an opportunity to investigate (Rechenberger v Nassau
County Medical Center, 112 AD2d 150). In addition, as the infant's claim can
be filed in a timely manner, defendant would be investigating the same incident
with no argument as to prejudice. Therefore, there is no substantial prejudice
to the State.
While the presence or absence of any one of the six factors 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 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.
However, since movant is seeking permission to file a late claim in a medical
malpractice action she must include a physician's affidavit in support of her
application. The affidavit is necessary to establish the allegations of
deviations from accepted standards (see Jolley v State of New York, 106
Misc 2d 550; Favicchio v State of New York, 144 Misc 2d 212). Movant
has not included a physician's affidavit in the moving papers which is a well
established requirement (see Colson v State of New York, 115 Misc 2d 402;
Schreck v State of New York, 81 AD2d 882; Matter of Edwards v State of
New York, 119 Misc 2d 355,357).
The State asserts that the proposed claim does not contain language sufficient
to distinguish it from a notice of intention. The Court also notes that the
proposed claim is lacking an ad damnum clause pursuant to Court of Claims
Act §11. However, the Court will not delve further into the deficiencies
of the proposed claim, as movant's application has already been shown to be
In conclusion, while certain factors favor movant, the Court cannot find an
appearance of merit at this time. Since a physician's affidavit was not
submitted, the application is legally defective. Therefore, the Court must deny
movant's application for permission to file a late claim. Movant has the
opportunity in a timely manner to properly resubmit the motion to repair the