This is the motion of Mariama Yilla for an order appointing her guardian ad
litem of Memuna Beckley-Kamara, and for permission to file a late claim
pursuant to §10.6 of the Court of Claims Act (the "Act"). The proposed
claim alleges that on September 17, 2002, Ms. Beckley-Kamara suffered hypoxic
brain damage because of defendant's medical malpractice at Downstate Medical
Center in Brooklyn. Ms. Yilla is Ms. Beckley-Kamara's granddaughter, with whom
Ms. Beckley-Kamara has resided since her release from Downstate. According to
Yilla, her grandmother now "needs assistance with all activities of daily living
and requires full time care and a home health aide." See ¶4 of the August
31, 2004 affidavit of Mariama Yilla (the "Yilla Aff.").
CPLR 1202(a) provides in relevant part that "[t]he court in which an action is
triable may appoint a guardian ad litem at any stage in the action upon . . .
the motion of . . . a relative . . ." In this case, the motion was properly
served pursuant to CPLR 1202(b) and Ms. Yilla has supplied written consent to
appointment pursuant to CPLR 1202 (c). Defendant states that Ms. Yilla "may"
lack legal standing to be guardian, but does not elaborate as to any specific
lack of qualification on the part of Ms. Yilla, who states that she is over 18
years of age, is fully competent to understand and protect her grandmother's
rights, has no adverse interest, and has a net worth of greater than $10,000.
See ¶¶1, 7 and 8 of the Yilla Aff.
As to the need for a guardian, claimant has submitted the affirmation of Claude
Macaluso, M.D., who examined Ms. Beckley-Kamara on August 16, 2004 for the
purpose of evaluating her mental competency. He found that she had severe short
term memory loss, was unable to recall questions that were asked of her, was
disoriented as to time and place, and had physical conditions consistent with
generalized brain injury. Dr. Macaluso also states that it is his opinion, with
reasonable medical certainty, that Ms. Beckley-Kamara suffers from permanent
brain damage and is unable to manage her own affairs or to understand the nature
and consequences of legal proceedings. See exhibit D to claimant's moving
In view of the foregoing, I find it appropriate to appoint Mariama Yilla as
guardian ad litem of Memuna Beckley-Kamara.
In order to determine Ms. Yilla's late claim motion, six factors enumerated in
the Act must be considered: whether (1) defendant had notice of the essential
facts constituting the claim; (2) defendant had an opportunity to investigate
the circumstances underlying the claim; (3) defendant was substantially
prejudiced; (4) claimant has any other available remedy; (5) the delay was
excusable and (6) the claim appears to be meritorious. The factors are not
necessarily exhaustive, nor is the presence or absence of any particular factor
With regard to notice, claimant points out that defendant is in possession of
Ms. Beckley-Kamara's medical records. But if such were sufficient to impute
notice for the purpose of the Act, this would mean that in any medical
malpractice case, this factor would automatically be satisfied. See O'Shea v
State of New York, Ct Cl filed November 5, 1999 (unreported, motion no.
M-59853, Marin, J.), affd 278 AD2d 237, 717 NYS2d 293 (2d Dept 2000).
Claimant also points out that the New York State Department of Health conducted
an investigation of the facts underlying this case and issued two violations to
Downstate. However, such were not issued until November 14, 2003, almost 14
months after the alleged September 17, 2002 malpractice. Overall, I cannot find
that notice has been satisfied in this case. Such medical records and
violations do, however, offer an opportunity to investigate, and prejudice has
not been identified or even asserted by defendant.
As to an alternate remedy, defendant does not dispute that claimant's sole
remedy lies in this Court. With regard to excuse, claimant relies on Ms.
Beckley-Kamara's mental incapacity following September 17, 2002. However, as
defendant notes, Dr. Macaluso's finding of mental incompetency was based on an
August 16, 2004 examination and does not address Ms. Beckley-Kamara's condition
during the 90 days following September 17, 2002. See Goldstein v State of
New York, 75 AD2d 613, 427 NYS2d 63 (2d Dept 1980). Accordingly, she has
submitted insufficient documentation to satisfy this factor.
Finally, it must be determined whether the proposed claim appears meritorious.
Claimant submits the affirmation of Robert Bernholc, M.D., a board-certified
anesthesiologist who reviewed claimant's Downstate records as well as "redacted
violations" issued by the State Department of Health to Downstate, including one
for failing to properly post-operatively monitor Ms. Beckley-Kamara. Dr.
Bernholc opines that Ms. Beckley-Kamara was not properly monitored following
surgery, which allowed her blood oxygen saturation to fall to dangerously low
levels, departing from good and accepted medical practice, and causing or
contributing to hypoxic brain injury. He also states that there was a departure
from good and accepted medical practice in failing to timely intubate Ms.
Beckley-Kamara to provide adequate oxygenation, and to have a physician with
sufficient qualifications available in a timely fashion to sedate or otherwise
medicate her to allow for successful intubation. See exhibit E to claimant's
In short, I find that claimant meets the standard set forth in Matter of
Santana v New York State Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395,
402-03 (Ct Cl 1977): (i) the claim "must not be patently groundless, frivolous,
or legally defective" and (ii) upon consideration of the entire record,
including the proposed claim and any exhibits or affidavits, "there is
reasonable cause to believe that a valid cause of action exists."
For the foregoing reasons, having reviewed the
, IT IS ORDERED that motion no.
M-69127 be granted and Mariama Yilla be appointed guardian ad litem of Memuna
Beckley-Kamara. IT IS FURTHER ORDERED that within forty-five (45) days of the
filing of this Decision and Order, Mariama Yilla shall serve and file her claim
on behalf of Memuna Beckley-Kamara and otherwise comply with §§11 and
11-a of the Court of Claims Act.