New York State Court of Claims

New York State Court of Claims

GRESSLER v. THE STATE OF NEW YORK, #2004-033-080, Claim No. None, Motion No. M-68619


Synopsis



Case Information

UID:
2004-033-080
Claimant(s):
ANDREW GRESSLER, an infant by his mother and natural guardian, SUSAN GRESSLER, Individually, and FRANK GRESSLER, Individually
Claimant short name:
GRESSLER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK The Court sua sponte amends the caption to read The State of New York as the only defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-68619
Cross-motion number(s):

Judge:
JAMES J. LACK
Claimant's attorney:
Dinkes & SchwitzerBy: Leigh Bernstein, 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 Andrew Gressler, an infant by his mother and natural guardian Susan Gressler, Susan Gressler, individually and by Frank Gressler (hereinafter "movants")[1] for permission to file a late claim pursuant to Court of Claims Act §10(6)[2], 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 section.

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 claim;

(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; and

(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 fatally defective.

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 defect.





September 30, 2004
Hauppauge, New York

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




[1]
All references to movant shall be to Susan Gressler since the claim of Frank Gressler is derivative.
[2]The following papers have been read and considered on movant's motion: Notice of Motion dated May 28, 2004 and filed June 14, 2004; Attorney Affirmation of Leigh Bernstein, Esq. with annexed Exhibits A-B dated May 28, 2004 and filed June 14, 2004; Affirmation in Opposition of Ellen Matowik, Esq. with annexed Exhibit A dated July 7, 2004 and filed July 14, 2004.