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
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
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'
, 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.