New York State Court of Claims

New York State Court of Claims

MITCHELL v. THE STATE OF NEW YORK, #2005-016-071, Claim No. None, Motion No. M-70733


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:
Lawrence C. Mitchell, Pro se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Ross N. Herman, Esq., AAG
Third-party defendant's attorney:

Signature date:
November 18, 2005
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the motion of Lawrence C. Mitchell for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). In his proposed claim, Mr. Mitchell alleges that on September 20, 2002, he suffered second degree burns on his right side because hospital staff members at SUNY Downstate Medical Center failed to monitor a heating pad that had been placed under him during surgery. Mr. Mitchell's previous claim (no. 109829) making such allegations was dismissed in a Decision and Order dated June 20, 2005 on the ground that it had not been served on defendant as required by §11 of the Act. As an initial matter, it should be noted that §10.6 of the Act does not permit the granting of a motion thereunder if the relevant statute of limitations has expired. As noted in the Court's previous Decision and Order, it appeared at that time that the two-and-one-half year statute of limitations for medical malpractice has expired, i.e., nothing had been submitted to indicate any treatment after September 20, 2002 that would implicate the doctrine of continuous treatment. Such remains unchanged on this motion, and thus to the extent that this late claim motion can be granted, such a claim can sound only in negligence, as to which there is a three year statute of limitations. See CPLR §§214 and 214-a.

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.[1]

The first three factors – whether defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this motion are intertwined and may be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). In this case, claimant made a complaint to the New York State Department of Health and an investigation was conducted (although it does not appear to have been completed until November of 2003). In any event, defendant makes no argument with regard to these three factors, and on balance, I find that they have been met.

As to an alternate remedy, claimant might have been able to commence an action against another individual or entity. With regard to excuse, claimant essentially states that he was unaware that he had to serve his claim on the Office of the Attorney General. Such is not a valid excuse for the purposes of the Act. See, e.g., E.K. v State of New York, 235 AD2d 540, 652 NYS2d 759 (2d Dept 1997), lv denied 89 NY2d 815, 659 NYS2d 856 (1997).

Finally, it must be determined whether the proposed claim appears meritorious. Claimant has submitted, inter alia, a December 26, 2003 letter from the Department of Health which states that "we substantiated your allegation regarding the trauma you sustained in the course of your surgery. Furthermore, we determined that the hospital staff failed to conform to standards for monitoring and assessing patients during operative procedures." 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."

Accordingly, having reviewed the parties' submissions[2], IT IS ORDERED that motion no. M-70733 be granted and that within forty-five (45) days of the filing of this Decision and Order, claimant shall serve and file the proposed claim submitted with this motion, and otherwise comply with §§11 and 11-a of the Court of Claims Act.

November 18, 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 Court reviewed: claimant's notice of motion with undesignated exhibits, proposed claim and affidavit in support; and defendant's affirmation in opposition with exhibits A and B.