New York State Court of Claims

New York State Court of Claims

LINDNER v. ROSWELL PARK CANCER INSTITUTE CORPORATION, STATE OF NEW YORK, #2004-034-563, , Motion No. M-68383


Synopsis


Claimant's motion to serve a late notice of claim against Roswell Park Cancer Institute Corporation is granted. Following Matter of Tyson v Roswell Park Cancer Institute Corp., 4 Misc 3d 556 (2003), the appropriate relief for a late claim is General Municipal Law § 50-e (5), and not Court of Claims Act § 10 (6).

Case Information

UID:
2004-034-563
Claimant(s):
MARY E. LINDNER and MARK LINDNER
Claimant short name:
LINDNER
Footnote (claimant name) :

Defendant(s):
ROSWELL PARK CANCER INSTITUTE CORPORATION, STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-68383
Cross-motion number(s):

Judge:
MICHAEL E. HUDSON
Claimant's attorney:
CELLINO & BARNES, P.C.By: John A. Sheehan, Esq., of Counsel
Defendant's attorney:
HISCOCK & BARCLAY, LLPBy: Jonathan G. Gorman, Esq., of Counsel
Third-party defendant's attorney:

Signature date:
September 13, 2004
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers have been submitted on the motion by Claimants for leave to serve a late notice of claim pursuant to Court of Claims Act § 10 (6), Public Authorities Law § 3567 and General Municipal Law § 50-e (5):

1. Notice of Motion, dated April 23, 2004, filed May 3, 2004;

2. Affirmation of John A. Sheehan, Esq., dated April 23, 2004, in support of motion, with attached exhibits;

3. Proposed Notice of Claim attached as Exhibit C within the Affirmation of John A. Sheehan, Esq.;

4. Affidavit of Mary E. Lindner, sworn to April 20, 2004, in support of motion;

5. Responding Affirmation of Jonathan G. Gorman, dated and filed May 17, 2004, in opposition to motion, with attached exhibits;

6. Claimants' Memorandum of Law, dated May 24, 2004;

7. Supplemental Affirmation of Jonathan G. Gorman, dated and filed May 28, 2004, in opposition to motion, with attached exhibits;

8. Affidavit of Brian Braun, sworn to May 28, 2004, attached as Exhibit A within the Supplemental Affirmation of Jonathan G. Gorman;

9. Affidavit of Ron Duquette, sworn to May 28, 2004, attached as Exhibit C within the Supplemental Affirmation of Jonathan G. Gorman.

Claimants have sought leave to serve a late notice of claim upon Roswell Park Cancer Institute Corporation (Roswell Park) and the State of New York (State) with respect to injuries allegedly sustained by Claimant Mary E. Lindner while undergoing diagnostic testing at Roswell Park during 2003. For reasons that follow I will grant the application as to Roswell Park, and deny any late claim relief against the State, in part without prejudice.

Ms. Lindner contends that she suffered injuries to her right hand while undergoing a barium x-ray procedure at Roswell Park on July 31, 2003. The incident purportedly occurred as hospital technicians helped position her on an x-ray table, and the machine's sliding table top moved, pinching three fingers on her right hand. Hospital personnel x-rayed and treated her hand injury at that time, and various hospital records memorialize the incident, injury and treatment. Moreover, Roswell Park's patient advocate, Brian Braun, met with the Claimants on two occasions that day: first, to arrange for immediate treatment; and later, to assist in the processing of their medical bills, and future treatment to the extent required. The Roswell Park representative also telephoned the Lindners on August 5, 2003 to discuss the status of Ms. Lindner's injuries.

I note from Defendants'submissions that Charles Kasper, a representative of the table's manufacturer, Philips Medical Systems North America (Philips), inspected the table on or about August 12, 2003. Those records support that by no later than August 13, 2003 Roswell Park learned that the underside of the table top was cracked, and sought pricing information for a replacement. Thereafter, at some unstated date the hospital determined to purchase a new table top. Roswell Park ordered the new equipment on December 1, 2003, and a Philips representative installed it on December 3, 2003. Defendants have alleged that the vendor then discarded the old table top, although from the submissions it is not clear whether Roswell Park ever contacted Philips to verify that the item is now destroyed.

Claimants initially based their application upon Court of Claims Act § 10 (6), without attempting to distinguish between the hospital and State in assessing either the legal or factual bases for relief. Thereafter, in apparent reliance upon Matter of Tyson v Roswell Park Cancer Institute Corp., 4 Misc 3d 556 (2003), the Lindners also cited Public Authorities Law § 3567 and General Municipal Law § 50-e (5) in support of their motion, although once again without differentiating between the two Defendants. Presumably, it is Claimants' belief that the State would be vicariously liable for the conduct of the hospital's employees. Defendants have challenged that basis for imposing liability against the State, and I will start my review by discussing the relationship between those two Defendants.

Roswell Park is a public corporation, specifically empowered to operate its hospital facility, and provide health and medical services to the public (Public Authorities Law § 3553 [1] [a]). The facility also has the power to sue and be sued in its own name (Public Authorities Law §§ 3554 [1], 3567). Such public corporations enjoy an existence separate and apart from the State, an autonomy deliberately designed to allow them a freedom and flexibility not permitted to an ordinary State board, department or commission (see Matter of Plumbing, Heating, Piping & Air Conditioning Contrs. Assn. v New York State Thruway Auth., 5 NY2d 420 [1959] [addressing autonomy of New York State Thruway Authority from the State in contract bidding matters]). That autonomy has been recognized as ordinarily exempting the State from liability for the torts of an authority based upon respondeat superior grounds (see Malone v State of New York, 285 App Div 1218 [1955] affd 1 NY2d 837 [1956]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 7 [1977]). For that reason the State would not generally bear vicarious liability for the negligence of Roswell Park employees, and recovery would instead necessitate some actionable conduct on the part of the State itself.

In light of the above I will separately review Claimants' application as it would relate to each of the two Defendants.

STATE OF NEW YORK
Leave to serve a late notice of claim against the State must be denied. Court of Claims Act § 10 (6) has established a single discretionary remedy for those who fail to either serve a notice of intention or file and serve a claim proper against the State within the time constraints set forth under several provisions of Court of Claims Act § 10. That remedy would be a late claim, and no allowance otherwise exists for the relief now sought. The Court of Claims Act makes no mention of a "notice of claim" in establishing procedures for the commencement of suits against the State. Although section 10 does provide for the service of a notice of intention to file a claim, that notice simply serves to extend the time to commence suit against the State as of right, and does not act as a condition precedent to the filing of a claim. To the extent the application might be deemed as one to serve a late notice of intention, no statutory authority exists for the grant of that relief, and no purpose would be served from a recognition of such a remedy (De Hart v State of New York, 92 Misc 2d 631, 634-637) [1977]); Holmes v State of New York, ___ Misc 3d ___, Ct Cl, June 30, 2004, Hudson, J., Claim No. None, Motion No. M-67804 [UID No. 2004-034-524]).[1]

I will also deny leave to file and serve a late claim under Court of Claims Act § 10 (6). While section 10 (6) does authorize a discretionary late claim remedy against the State, nothing within the submissions would support such relief. The appearance of merit is the most decisive consideration in determining whether to grant a late claim against the State (see Dippolito v State of New York, 192 Misc 2d 395, 396-397 [2002]; Jolley v State of New York, 106 Misc 2d 550, 551 [1980]). Claimants have not set forth any ground for imposing liability against the State for the conduct at Roswell Park beyond its creation of that public corporation. As previously addressed, liability cannot be imposed on that basis, and the failure to otherwise articulate some factual ground in support of liability warrants denial of the motion. Denial will be without prejudice to a further application that affords some arguable support for imposing liability upon that Defendant.

Although it is not necessary to review other factors set forth within section 10 (6) when denial of late claim relief allows a claimant to bring a subsequent application (see Jolley, 106 Misc 2d at 552), I note that Claimants have failed to address questions of notice, prejudice and the opportunity to investigate from the perspective of the State, as an entity separate from the hospital. Each of those factors, listed within the statute, merits some consideration in a late claim review.
ROSWELL PARK
I will grant Claimants' application to serve a late notice of claim upon Roswell Park. Public Authorities Law §§ 3567 (1) and 2980, respectively, compel service of a notice of claim pursuant to General Municipal Law § 50-e as a condition precedent to the commencement of an action to recover for personal injury and wrongful death. As discussed in Tyson, relief from the failure to timely serve a notice of claim would be governed by General Municipal Law § 50-e (5), and not Court of Claims Act § 10 (6). Three key factors have been identified in determining whether to grant such discretionary relief: whether Claimants have shown a reasonable excuse for the delay; whether Roswell Park had actual or constructive notice of the essential facts constituting the claim within 90 days of its accrual, or a reasonable time thereafter; and whether the delay would substantially prejudice the hospital in maintaining its defense (Hilton v Town of Richland, 216 AD2d 921[1995]). I note that the appearance of merit, a factor so critical in determining a late claim application against the State pursuant to Court of Claims Act § 10 (6), is only to be considered in a review under General Municipal Law § 50-e (5) when the claim is "patently meritless" (Weiss v City of New York, 237 AD2d 212, 213 [1997]).

Claimants' excuse for their failure to timely act is simple: in the months that immediately followed the incident they did not know that Ms. Lindner's symptoms would persist and worsen, believing instead that her condition would resolve itself. The lack of awareness of the seriousness of an injury until after the expiration of the 90-day period has been recognized as constituting a reasonable excuse (see Matter of Greene v Rochester Housing Auth., 273 AD2d 895 [2000]; More v General Brown Cent. School Dist., 262 AD2d 1030 [1999]). I am mindful that the above excuse has been propounded in the affidavit and memorandum of Claimants' counsel, and not directly by the Lindners. Nevertheless, the comments are consistent with Ms. Lindner's representations that she knew that she had not sustained any fractures, and initially believed that her symptoms would improve over time. The submissions also support that her level of treatment did not progress from her primary physician to a neurological specialist until November 2003, several weeks after the time to serve a notice of claim had expired. However, even assuming that the suggested explanation for the delay is deficient, that failing is not fatal where, as here, the hospital possessed actual notice of the facts that constitute the claim, and there is no compelling showing of prejudice to the hospital from the delay (see Matter of Henderson v Town of Van Buren, 281 AD2d 872, 873 [2001]); Matter of Blair v County of Ontario, 295 AD2d 933 [2002]).

Regarding notice, on the submissions Roswell Park clearly possessed actual knowledge of the incident at the point it occurred. As alleged, it was the hospital's own x-ray technicians who caused the accident, and without question those employees would have been witnesses to the event. The hospital also evaluated and initially treated Ms. Lindner's injuries immediately after the incident. Moreover, its patient advocate had two meetings with Claimants on the date of the accident, and telephoned them five weeks later to learn the status of Ms. Lindner's injury and treatment. The hospital also must have arranged for the x-ray table's manufacturer to have a representative inspect and report on the condition of the machine, and undisputedly learned of a defect in the table top two weeks after the incident. Great weight must be accorded the hospital's timely knowledge of those underlying facts (see Kalenda v Buffalo Mun. Hous. Auth., 203 AD2d 937 [1994]).

Based largely on the above the Court rejects Roswell Park's assertions that it has been prejudiced by the delay. Witnesses to the occurrence are employed by the hospital, and within its control. Further, in contacting the manufacturer to have a representative inspect the machine Roswell Park gained prompt knowledge of a defect within the table top, and there is no claim that the hospital is no longer able to develop testimony and documentation regarding that defect. I understand that four months after the event the hospital purchased a replacement table top from the same manufacturer, and that the manufacturer removed the old equipment. However, the allegation that the defective item was thereafter discarded by the manufacturer lacks any support on knowledge. Specific information concerning the manner and timing of the purported loss of the old equipment would also be relevant in assessing Roswell Park's own diligence in preserving that item, particularly in view of Claimants' counsel's contact with the hospital on or about December 5, 2003, only two days after the old table top was replaced. Further, no allegation has been made that the defect in issue, an apparent crack to the underside of the table top at the head end, would have played any role in the incident. More generally, all decisions regarding the replacement of the x-ray table top and retention of the old item rested exclusively within the control of Roswell Park, and there is no evidence that Claimants had affirmatively lulled the hospital into a belief that suit would not be filed. Lastly, the intimation by counsel that Defendant had waited until the notice of claim period expired before taking action is completely devoid of evidentiary support, and will not be credited.

Based upon the above, it is

ORDERED, that with respect to the State of New York, Claimants' motion is denied to the extent leave is sought to serve a late notice of claim or notice of intention to file a claim, and denied without prejudice to the extent of leave to file and serve a late claim under Court of Claims Act § 10 (6), and it is further

ORDERED, that with respect to Roswell Park Cancer Institute Corporation, Claimants' motion is granted to the extent leave is sought to serve a notice of claim against the hospital pursuant to Public Authorities Law § § 3567 (1) and 2980, and General Municipal Law § 50-e (5). Claimants are to serve their notice of claim in conformity with the requirements of General Municipal Law § 50-e. The claim proper is thereafter to be filed and served in conformity with the requirements of Court of Claims Act § § 11 and 11-a, with service also being made upon Roswell Park.

September 13, 2004
Buffalo, New York

HON. MICHAEL E. HUDSON
Judge of the Court of Claims



[1] Unpublished decision and orders and selected decisions of the Court of Claims are available at www.nyscourtofclaims.state.ny.us.