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, #2005-010-064, Claim No. NONE, Motion No. M-70912


Synopsis


Claimant's renewal motion is denied. Evidence could have been discovered earlier with due diligence.

Case Information

UID:
2005-010-064
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-70912
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:
February 24, 2006
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 renewal motion:
Notice of Motion, Supporting Affirmation and Exhibits, Memorandum of Law....1

Affirmation in Opposition and Exhibit......................................................................2

Claimant seeks leave to renew regarding this Court's Decision and Order filed stamped April 1, 2005 which, after careful consideration, denied the application for leave to file a late claim. The Court noted in its decision:
"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)."
(Claimant's Ex. A). The Court also stated:
"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. *** 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."

(id.).

A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" (CPLR 2221 [e] [2]), and "shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e] [3]). "A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Elder v Elder, 21 AD3d 1055).

Here, the movant has failed to offer a reasonable justification as to why the "complete medical records" were not obtained prior to the late claim application (Attorney's Supporting Affirmation, ¶ 6). Significantly absent from the papers submitted is any indication as to when a request was first made for such records. Rather, claimant sought to submit only the letter dated May 4, 2005 which states that the records received from the facility failed to include the following:
  1. Admission paperwork from 4/23/03
  2. Minimum Data Sheets (MDS)
  3. Physician's orders
  4. Medication Administration Records
  5. Nurse's notes from before September 2003

(Claimant's Ex. D). The letter does not state when, if any, initial request had been made prior to May 2005, nor does it provide a date as to when any records were received.

Thus, on the record before this Court, it appears that claimant's attorney did not diligently pursue any requests for medical records until after this Court's Decision and Order filed stamped April 1, 2005 which denied his application on numerous grounds and explicitly noted claimant's failure to "substantiate with medical proof that the decedent suffered from dementia rendering him incapable of commencing an action on his own behalf" and found that such alleged incapacity was inadequate "without either a physician's affidavit or hospital records" [emphasis added] (Claimant's Ex. A). The Court further noted that "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" [emphasis added] (id.). The Court also found the failure to "allege with any specificity how defendant was negligent and how such alleged negligence was a proximate cause of the alleged damage" (id.).

Contrary to the characterization at ¶ 6(i) of the attorney's affirmation in support of this current application, the Court's Decision and Order filed stamped April 1, 2005 was not a "direction" to claimant's attorney to submit medical records, a physician's affidavit or other documentation on a renewal application. Rather, it was the Court's finding that the late claim application was denied for claimant's failure to submit such items in support of the initial application.

The Court DENIES this application on the ground that the evidence could have been discovered earlier with due diligence (see Allstate Ins. v Davis, 23 AD3d 418; Renna v Gullo, 19 AD3d 472).



February 24, 2006
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims