New York State Court of Claims

New York State Court of Claims

BYCZEK v. THE STATE OF NEW YORK, #2005-016-005, Claim No. None, Motion No. M-69096


Late claim motion alleging medical malpractice was denied.

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):

Alan C. Marin
Claimant's attorney:
Vitarelli & DesorboBy: Louis S. Desorbo, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Ellen Matowik, Esq., AAG
Third-party defendant's attorney:

Signature date:
February 3, 2005
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the motion of Joseph and Camille Byczek[1] for permission to serve and file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). In the proposed claim, it is alleged as follows. In April of 2002, claimant was admitted to the State University of New York Downstate Medical Center/Health Science Center for treatment of a bladder condition. During the course of such treatment, he had a chest x-ray which, "together with signs and symptoms displayed by claimant, were consistent with early stage carcinoma of the lungs. [Defendant] . . . [was] negligent in . . . [failing] to properly diagnose and treat claimant and [failing] to properly read and interpret the diagnostic films and tests taken in April of 2002." See proposed claim, exhibit 6 to claimants' moving papers. In claimant's affidavit, which provides more detail than the proposed claim, Mr. Byczek states that in December of 2002, he was advised that another bladder surgery was needed, for which he had to be "medically cleared" by his cardiologist. When he then went to see the cardiologist, he learned for the first time that there was a "mass or tumor in [his] lungs," and he was subsequently diagnosed with cancer. According to claimant, the cardiologist told him that the tumors and masses on his lung were in fact evident on his earlier April 2002 x-ray. In order to determine this 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.[2]

With regard to notice, claimants point out that defendant is in possession of Mr. Byczek'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, such 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). While notice has not been satisfied, such medical records do, however, offer an opportunity to investigate at this time. In addition, aside from a general assertion, defendant has pointed to no identifiable prejudice.

As to an alternate remedy, defendant argues that claimant may sue the physician who treated him in Supreme Court. Claimant does not dispute that this factor has not been met. As to excuse, claimant could not have known of the existence of any medical malpractice claim during the 90 days following his April 4, 2002 chest x-ray, as he was not advised of the x-ray results until January of 2003.[3] Accordingly, I find that the excuse factor has been satisfied.

Finally, it must be determined whether the proposed claim appears meritorious. Claimants have submitted no affidavit from a physician. There is authority that such is a condition precedent to a finding of merit. See, e.g., Schreck v State of New York, 81 AD2d 882, 439 NYS2d 162 (2d Dept, 1981); Favicchio v State of New York, 144 Misc 2d 212, 543 NYS2d 871 (Ct Cl 1989); and Jolley v State of New York, 106 Misc 2d 550, 434 NYS2d 122 (Ct Cl 1980). A number of appellate division cases have held that a medical affidavit is not necessary, but in such cases, claimants submitted medical records patently sufficient to show the appearance of medical malpractice. See Caracci v State of New York, 178 AD2d 876, 577 NYS2d 925 (3d Dept 1991); O'Shea, supra; and DePaolo v State of New York, 99 AD2d 762, 472 NYS2d 10 (2d Dept 1984).

In the instant case, claimants have submitted no medical records at all, and rely solely on Joseph Byczek's affidavit as to what happened to him.[4] In its reply papers, defendant submits a two page report of the April 4, 2002 chest x-ray, which refers to a variety of medical conditions, which may be chronic. Such states in relevant part:
Examination reveals a mass in the right upper lung field. On lateral film, this appears to overlie the elongated aspect of the aortic arch. Increased lung markings noted in both lung fields. Blunting of the right costophrenic angle is noted. No evidence of effusion was noted on the lateral film.

The heart is enlarged with prominence of both ventricles. The right ventricle appears to [be] the dominant in size. Prominent pulmonary vasculature is noted especially in the right lower lobe. The pulmonary artery to the left lung is also prominent.

Metallic sutures are seen in the sternum. Metallic clips seen in the pericardium.

The visualized bones showed degenerated changes of the thoracic spine.


Cardiomegaly, biventricular enlargement, pulmonary venous prominence.

Chronic lung changes.

Mass noted in the right upper lobe. This may have been present on the previous study. Previously, the mass was smaller and consisted of overlapping lung markings.

See exhibit A to defendant's opposition papers.

In Caracci, supra, the clinic did not inform claimant that her radiology report indicated that the mass in question could be cancerous and that a CAT scan was recommended. As the Third Department noted, the clinic's conduct could be "assessed on the basis of common everyday experience and knowledge without reference to an expert's opinion." 178 AD2d at 877, 577 NYS2d at 926. Here, in contrast, it is not apparent from Byczek's x-ray report that the mass was potentially cancerous, or what subsequent treatment would be appropriate. See also Diaz v State of New York, Ct Cl dated April 11, 2002 (unreported, motion no. M-63160, Fitzpatrick, J., UID #2002-018-128[5]). In sum, the merit factor of the Act has not been met by claimants in this case.

Accordingly, having reviewed the parties' submissions[6], IT IS ORDERED that motion no. M-69096 be denied.

February 3, 2005
New York, New York

Judge of the Court of Claims

  1. [1]As the claim of Camille Byczek is derivative of her husband's, references herein to claimant in the singular will refer to Joseph Byczek.
  2. [2]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).
  3. [3]As set forth more fully below, the April 4, 2002 x-ray report states that a mass noted on claimant's lung "may have been present on a previous study." Defendant argues that the reference to a "previous study" is to a September 24, 2001 x-ray. No such earlier x-ray, report or medical affidavit has been submitted, and for the purposes of reviewing this factor, defendant has not shown that claimant knew or should have known of lung masses or cancer until early 2003.
  4. [4]As to medical records, it is stated that claimants' attorneys have "been hampered in their efforts to secure complete medical records from the defendant and Dr. Hyacinth." See ¶17 of the September 15, 2004 affirmation of Louis S. DeSorbo, Esq. However, having submitted no reply papers, claimants do not dispute defendant's assertion (made in connection with both this motion and previously on motion nos. M-68010 and CM-68174) that the records are in fact available from Downstate upon payment of Downstate's copying cost invoice. Such was noted in the Court's Decision and Order on the previous motions. Moreover, as noted in such previous Decision and Order, claimants concede that they do have medical records going back to April 2002; the records they did not yet have as of such previous motions were from prior to April 2002.
  5. [5]This and other decisions of the Court of Claims may be found on the Court's website:
  6. [6]The following were reviewed: claimants' notice of motion with affirmation in support and exhibits 1 through 6; and defendant's affirmation in opposition with exhibit A.