This is a motion of Julie A. Hughes (hereinafter "movant") for permission to
file a late claim pursuant to Court of Claims Act
, relating to alleged medical
malpractice occurring between February 23, 2003 and August 7, 2003, when movant
was surgically treated to repair a hernia at University Hospital and Medical
Center at Stony Brook (hereinafter "Stony Brook). The claim of Robert V. Hughes
is derivative in nature.
On February 23, 2003, movant was treated for an incisional ventral hernia.
Movant's wound became infected and she was hospitalized March 7 - 17, 2003.
Movant's wound was reopened and drained. Movant was also treated with
antibiotics. Movant was last seen at Stony Brook on August 7, 2003. Prior to
this time, movant's wound was not healing and she was told it may take up to one
year to heal. In October 2003, movant underwent surgery at Mather Memorial
Hospital (hereinafter "Mather") to repair this wound. At that time, the mesh
used by Stony Brook was found attached to movant's colon and a black spot was
noted where the mesh was attached.
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 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 to ignorance. The moving papers indicate
that movant was not aware of the deadline until she consulted with counsel.
Ignorance, in and of itself, is not a sufficient excuse (see, Sevillia v
State of New York, 91 AD2d 792).
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.
The State was fully aware of the movant's infection. Movant was being treated
for the infection at Stony Brook. However, it was movant's surgery subsequent
to ending her treatment at Stony Brook which revealed the alleged medical
malpractice. The State had no opportunity to investigate the area which was
repaired at Mather. As the infection was a risk of the initial procedure, the
State had no notice of the essential facts. In addition, the Court finds that
the State would be prejudiced.
Movant has an alternate remedy available. Movant can sue the physician who
performed the initial procedure.
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), 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.
The Court finds that movant has failed to establish the appearance of merit.
The expert affirmation supporting movant's application does not help her
position. The affirmation does not clearly state that there has been a
departure from good and accepted medical standards. The expert "informally"
opines that the State could have been more aggressive in treating movant.
Accordingly, this Court denies movants' application for permission to file a