New York State Court of Claims

New York State Court of Claims

YILLA v. THE STATE OF NEW YORK, #2005-016-002, Claim No. None, Motion No. M-69127


Motion for appointment of guardian ad litem and for permission to file late claim alleging medical malpractice was granted.

Case Information

MARIAMA YILLA as proposed guardian ad litem of MEMUNA BECKLEY-KAMARA
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):

Alan C. Marin
Claimant's attorney:
Zucker & Ballen, P.C.By: Gary A. Zucker, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Ellen Matowik, Esq., AAG
Third-party defendant's attorney:

Signature date:
January 21, 2005
New York

Official citation:

Appellate results:

See also (multicaptioned case)


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 papers.

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 controlling.[1]

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 moving papers.

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 submissions[2], 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.

January 21, 2005
New York, New York

Judge of the Court of Claims

  1. [1]See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  2. [2]The following were submitted: claimant's notice of motion with petition, consent to serve as guardian ad litem, affirmation in support and exhibits A-E; defendant's affirmation in opposition; and claimant's reply affirmation.