New York State Court of Claims

New York State Court of Claims

VELASAQUEZ v. THE STATE OF NEW YORK, #2005-010-036, Claim No. NONE, Motion No. M-69782


Claimant's motion for leave to serve and file a late claim is denied as the Court did not find any appearance of merit

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Terry Jane Ruderman
Claimant's attorney:
Defendant's attorney:
Attorney General for the State of New YorkBy: John Healey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 12, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-3 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 Affidavit and Exhibits.....................................................................................................................1

Affirmation in Reply and Opposition.......................................................................2

Attorney's Supporting Affirmation and Exhibits.....................................................3

The proposed claim alleges, inter alia, negligent infliction of emotional distress caused by defendant's failure to provide claimant's four-month-old son with proper medical care during claimant's incarceration at Taconic Correctional Facility from November 23, 2003 through November 28, 2003. According to claimant's affidavit annexed to the motion papers, claimant repeatedly informed nursing staff that she feared her son was dying and that he needed to be sent to a hospital. On November 26, 2003, the child was examined at Westchester County Medical Center; however claimant maintains this was a "brief examination" (Claimant's Affidavit, ¶ 7). The child died on November 28, 2003 and a wrongful death claim has been filed (Vega v State of New York, Claim No. 110790).[1]

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. While the proposed claim alleges that the emotional distress began November 23, 2003 and continues to the present, it also states that the claim accrued on November 28, 2003. The purported excuse for the delay is that, "[w]hile it was clear that a wrongful death claim would be initiated, the instant claim for emotional distress was not contemplated until more recently" (Attorney's Affirmation, ¶ 11). This is not an acceptable excuse.[2]

In deciding a motion for leave to serve and file a late claim, the most significant factor is whether the proposed claim has an appearance of merit. 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 proposed 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).

Here, claimant argues that she has a cognizable claim of negligent emotional distress under Broadnax v Gonzalez, 2 NY3d 148. In that case, the Court of Appeals recognized a mother's right to recover for emotional injuries, even without a showing of an independent physical injury of the mother, when medical malpractice caused a stillbirth or miscarriage. Claimant, however, does not fall within the narrow holding of that case. The limitations of the Broadnax holding was explicitly explained by the Court of Appeals in Sheppard-Mobley v King, 4 NY3d 627 where the Court stated:
"Our decision in Broadnax/Fahey was intended to fill a gap created by our previous decision in Tebbutt which concerned the medical malpractice performed upon the body of an expectant mother resulting in a miscarriage or stillbirth. *** As we recognized in Broadnax/Fahey, our tort jurisprudence in this area created a ‘peculiar result' in that ‘it exposed medical caregivers to malpractice liability for in utero injuries when the fetus survived, but immunized them against any liability when their malpractice caused a miscarriage or stillbirth (quoting Broadnax/Fahey, 2 NY3d at 154). *** It was this particular injustice that we sought to rectify when we held that a mother could recover for emotional injuries when medical malpractice caused a stillbirth or a miscarriage, even without a showing that she suffered an independent physical injury. In other words, our holding in Broadnax/Fahey is a narrow one, intended to permit a cause of action where otherwise none would be available to redress the wrongdoing that resulted in a miscarriage or stillbirth."

This Court does not find any appearance of merit of claimant's cause of action for negligent emotional distress under Broadnax/Fahey or otherwise. Significantly, while claimant submitted her son's medical records, she failed to submit her own medical records, if any exist, establishing that she indeed sustained emotional distress or underwent any medical treatment for the claimed injury. Rather, claimant merely stated in her affidavit:
"During this intense ordeal, I was angry, stressed, distressed, helpless, anxious, nervous, shocked, depressed, among other intense emotional feelings. These feelings were intensified, since I was incarcerated until August 31, 2004. Since that time until present, I have been on work release. I thought that emotional trauma and scarring would lessen with time. Today, however, I continue to experience many of these feelings with varying degrees of intensity. *** I do not know if I will ever be the same."
(Claimant's Affidavit, ¶¶ 9-10). Claimant's unsupported conclusory allegations set forth in her affidavit, without any competent medical proof of her alleged injury, are insufficient to establish the appearance of merit of her claim (see Klingler v State of New York, 213 AD2d 378 [claimant's unsupported opinion does not suffice to establish merit of her claim]). Without any medical records or other documentation to corroborate claimant's self-serving affidavit as to her alleged emotional injuries, 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]).

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).

July 12, 2005
White Plains, New York

Judge of the Court of Claims

[1] The child's medical records and Letters of Administration regarding the child are annexed to the motion papers (Exs. A, D) and the supporting affirmation (Ex. C).
[2] While not argued by claimant, any claim of excuse due to claimant's alleged emotional distress would not be acceptable without either a physician's affidavit or hospital records establishing her incapacity to commence an action (see Goldstein v State of New York, 75 AD2d 613, 614).