Movant brings a motion seeking permission to file a late claim. Defendant
Movant submits in support of his application, his affidavit, the affidavit of
his attorney, Thomas J. Potter, and the affidavit of his former attorney, Donald
J. Martin. An unsigned proposed claim is also submitted. Movant has also
supplemented his original submissions with another affidavit from Thomas J.
Potter, Esquire sworn to November 22, 2004, with a portion of Movant's medical
records attached. Based upon these submissions, the substance of Movant's
proposed claim is the alleged medical malpractice of the Defendant in leaving a
foreign object in Movant during a surgery performed at the State University of
New York Upstate Medical University (hereinafter University Hospital) by Dr.
Jiri G. Bem on January 13, 2004. The medical records attached to Movant's
counsel's affidavit sworn to November 22, 2004, indicate that the "end of case
counts" for sponges after this surgery was "unresolved" (Potter affidavit
Exhibit A, page 1). Movant alleges that the site of his incision would not
heal. On April 9, 2004, Movant was re-admitted to University Hospital after an
office visit with his endocrinologist, Dr. Lebowitz and a CT scan was performed.
The records from Movant's evaluation in the emergency room on April 9, 2004
indicate that a CT scan of the area where Movant had surgery showed a "soft
tissue density and gas collection that contains the radio-opaque foreign body"
(Potter affidavit sworn to November 22, 2004, Exhibit B page 2). Movant
underwent a second surgery on April 10, 2004, performed by Dr. Frank Szmalc.
Movant was advised after this second surgery, that a surgical sponge had been
left at the site of his first surgery. He was hospitalized until April 14,
2004, and required nursing care in his home until July 10, 2004. The report
of the surgery performed on April 10, 2004, reflects that a foreign body was
extracted which was determined to be a "lap sponge" (Potter Affidavit sworn to
November 22, 2004 , Exhibit C page 2 of Operative Procedure Report).
A proposed claimant who fails to timely file and serve a claim or serve a
notice of intention may be permitted, upon application and in the discretion of
the court, to file a claim which complies with § 11 of the Court of Claims
Act, at any time before an action asserting a like claim against a citizen of
the State would be barred under the provisions of article two of the CPLR (Court
of Claims Act § 10). Movant never served a notice of intention and no
claim was ever served or filed in this matter. Movant's late claim application
is timely (Court of Claims Act § 10; CPLR 214-a).
To determine, substantively, whether an application for permission to file a
late claim should be granted, consideration must be given to the six factors
listed in Court of Claims Act
§ 10(6), and any other relevant factors. The presence or absence of any
one factor is not determinative (Bay Terrace Cooperative Section IV, Inc., v
New York State Employees' Retirement System Policemen's and Firemen's Retirement
System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965).
Instead, it is a balancing of all of the factors by the Court which may warrant
the granting of the application to file and serve a late claim.
Movant asserts as an excuse for his failure to timely serve a notice of
intention or to file and serve a claim in accordance with Court of Claims Act
§ 10, his extended convalescence as a result of the first and second
surgeries and his lack of knowledge of the legal requirements for bringing a
claim in this Court. Clearly, ignorance of the law is not an acceptable excuse
for failing to bring a timely claim (see Matter of Galvin v State of New
York, 176 AD2d 1185; Matter of E. K. v State of New York, 235 AD2d
540). Movant's alleged incapacitation as a result of his complications from
the first surgery and recovery from the second surgery requires closer scrutiny.
Based upon Movant's assertion that a foreign object was left at the surgery site
following his first surgery on Janurary 13, 2004, the 90 day time frame within
which to bring the claim would not begin to run until April 10, 2004, the date
movant discovered the foreign object (see CPLR 214-a; Paul v State of
New York, 88 Misc 2d 972). From April 10, 2004, Movant would have had
until July 9, 2004 to file and serve a timely claim or serve a notice of
intention (Court of Claims Act § 10). He asserts that he was confined
to his home from his hospital discharge on April 15, 2004 until June 1, 2004.
Thereafter, he continued to require nursing care in his home until July 10,
2004. Yet, as Defendant points out, he contacted his attorney in mid-June,
entertained guests in his home, and attended doctor's appointments. It would
seem that as of June, Movant could have had drafted and served at least a notice
of intention. His failure to do so, as Defendant argues, cannot be reasonably
excused by his period of recovery where he presents no medical documentation to
support his incapacitation as to preclude a visit to his attorney's office
(see Crane v State of New York, 29 AD2d 1001; cf. Wolf v State of New
York, 140 AD2d 692; Stabile v State of New York, 12 AD2d 698;
Bloom v State of New York, 5 AD2d 930; Plate v State of New York,
92 Misc 2d 1033).
Turning to whether the State had notice, an opportunity to investigate the
facts underlying the proposed claim, or whether the State would suffer prejudice
if the application was granted, these factors, being interrelated, will be
considered together. The Court finds and Defendant acknowledges that these
factors weigh in favor of granting Movant's application.
The next factor, whether the claim appears to be meritorious, is referred to as
the most essential factor. Unlike a party who has timely filed a claim, one
seeking permission to file a late claim has the heavier burden of demonstrating
that the proposed claim appears to be meritorious (see, Nyberg v State of
New York, 154 Misc 2d 199). Generally, a proposed claim meets this
standard if it is not patently groundless, frivolous, or legally defective, and
upon consideration of the entire record, there is cause to believe that a valid
cause of action exists (Matter of Santana v New York State Thruway
Authority, 92 Misc 2d 1, 11). Although typically with a medical
malpractice case, an affidavit from a medical expert is necessary in order to
establish merit, there are some cases where medical records alone will provide
sufficient information for the Court, to assess the meritoriousness of the
potential claim. Foreign object cases can fall into that category (see,
Trudeau v State of New York, Ct Cl, Fitzpatrick, J., signed May 26, 2000,
Claim No. 101773, Motion No. M-61278, UID # 2000-018-018; see also DePaolo v
State of New York, 99 AD2d 762 [claimant's medical records established
condition which based upon the packaging literature of Motrin should have
precluded the use of the drug]; Caracci v State of New York, 203 AD2d 842
[radiologist report after x-ray indicated a mass in chest which was either
malignant or benign, further testing was recommended, report was never given to
claimant who continued to treat with same facility, no further testing was
performed, claimant found a mass on her neck which was later diagnosed as
cancerous]). Based upon the Movant's medical records there is reasonable cause
to believe that Movant has a potentially meritorious claim.
The final factor to be considered is whether movant has any other available
remedy. Defendant notes movant may have an individual lawsuit against the
doctor who performed the first surgery in Supreme Court. As a result this
factor weighs against Movant's application.
Upon balancing all of the factors in the Court of Claims Act § 10(6), this
Court GRANTS Movant's application for permission to file a late claim. Movant
shall file and serve the proposed claim properly verified with the filing fee or
an application pursuant to the CPLR
§ 1101 within 45 days of the date this Decision and Order is filed with the
Clerk of the Court in accordance with all statutes and rules of Court.
The Court has considered the following documents in deciding this motion:
Affidavit of Thomas J. Potter, Esquire, in support, with exhibits
Movant's Memorandum of
Affirmation of Maureen A. MacPherson, Esquire, Assistant Attorney
Affidavit of Thomas J. Potter, Esquire, in support, with exhibits