New York State Court of Claims

New York State Court of Claims

CARTER v. NEW YORK STATE VETERANS HOME AT MONTROSE and THE STATE OF NEW YORK as Owner and Operator of NEW YORK STATE VETERANS HOME AT MONTROSE, #2005-010-021, Claim No. NONE, Motion No. M-69669


Synopsis


Claimant's motion to serve and file a late claim is denied. Appearance of merit was not established.

Case Information

UID:
2005-010-021
Claimant(s):
LUCEDA CARTER, ON BEHALF OF THE ESTATE OF RICHARD L. CARTER
Claimant short name:
CARTER
Footnote (claimant name) :

Defendant(s):
NEW YORK STATE VETERANS HOME AT MONTROSE and THE STATE OF NEW YORK as Owner and Operator of NEW YORK STATE VETERANS HOME AT MONTROSE
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-69669
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
SEAN J. DOOLAN, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Dian Kerr McCullough, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 17, 2005
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-2 were read and considered by the Court on claimant's motion for leave to serve and file a late claim:
Notice of Motion, Attorney's Supporting Affirmation, Claimant's Supporting Affidavit and Exhibits, Memorandum of Law.........................................................1

Attorney's Affirmation in Opposition.......................................................................2

This late claim application is brought by Luceda Carter on behalf of Richard L. Carter, claimant's husband, who died on March 12, 2004. Letters of Administration were issued to claimant on November 24, 2004 (Claimant's Ex. A). Claimant's Supporting Affidavit states that on or about April 29, 2003 through October 28, 2003, the decedent was a resident of New York State Veterans Nursing Home in Montrose. Claimant maintains that upon her husband's admission to the state facility, it was known that he had a history of bedsores, was diabetic and suffered from dementia. He was admitted to the facility for, among other things, wound care. The Proposed Claim alleges wrongful death resulting from defendant's negligence in failing to properly care for the decedent in the treatment of his existing bedsores, failure to prevent further bedsores from developing, and failure to properly monitor his diabetes.

Preliminarily, claimant's application regarding the wrongful death claim is moot because claimant timely filed a wrongful death claim on February 7, 2005 (Claim No. 110461). With regard to the alleged negligence claim, claimant contends that the negligence claim accrued on October 28, 2003, when she learned of the additional bedsores and that the decedent's dementia prevented him from bringing suit on his own behalf.

The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in Subdivision 6 of Section 10 of the Court of Claims Act: (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 claimant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979).

The Court has considered the above six factors. Claimant's purported excuse for the failure to timely commence an action is not acceptable on the papers submitted because claimant failed to substantiate with medical proof that the decedent suffered from dementia rendering him incapable of commencing an action on his own behalf (see Klingler v State of New York, 213 AD2d 378; Quilliam v State of New York, 282 AD2d 590). The "alleged incapacity is inadequate as an excuse for late filing without either a physician's affidavit or hospital records" (Goldstein v State of New York, 75 AD2d 613, 614).

Most significant is the appearance of merit of the proposed claim. Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). "A general allegation of negligence on the part of the State is insufficient to establish a meritorious cause of action" (Witko v State of New York, 212 AD2d 889, 891). Notably, the proposed claim fails to allege with any specificity how defendant was negligent and how such alleged negligence was a proximate cause of the alleged damage. Claimant's unsupported conclusory allegations are insufficient to establish the appearance of merit (see Klingler v State of New York, supra [claimant's unsupported opinion does not suffice to establish merit of her claim]).

Additionally, without any photographs, medical records or other documentation to corroborate claimant's self-serving affidavit as to the decedent's alleged condition on October 28, 2003, defendant would be substantially prejudiced by a granting of claimant's application (see Matter of Gallagher v State of New York, 236 AD2d 400 [nine month delay caused State substantial prejudice and claimant did not establish appearance of merit merely by submitting a photograph of the accident site]; Sevillia v State of New York, 91 AD2d 792 [claimant did not establish merit where there was no accident report or a witness' statement]).

Accordingly, upon weighing all the factors, claimant's motion for leave to file and serve a late claim is DENIED (see Qing Liu v City Univ. of N.Y., 262 AD2d 473).


March 17, 2005
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims