New York State Court of Claims

New York State Court of Claims

WEILER v. THE STATE OF NEW YORK, #2005-030-521, Claim No. NONE, Motion No. M-69619


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):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
April 11, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 5, were read and considered on the proposed[1] Claimant's motion for permission to serve and file a late claim brought pursuant to Court of Claims Act §10(6):
1-3 Notice of Motion, Affirmation in Support by Elizabeth W. Hobler, Counsel for Claimant, dated January 6, 2005; Affidavit in Support by Dr. Marc Weiler, Claimant, sworn to January 11, 2005, and attached exhibits

  1. Affirmation in Opposition by Vincent M. Cascio, Assistant Attorney General, dated February, 2005
  1. Reply Affirmation by Elizabeth W. Hobler, Counsel for Claimant, dated February 10, 2005, and attached exhibits
After carefully considering the papers submitted and the applicable law the motion is disposed of as follows:

Dr. Marc Weiler, the Claimant herein, alleges in his proposed claim that Defendant's agents negligently failed to protect Lorene Kneiss from an assault by her fellow patients at Rockland Psychiatric Center on June 25, 2004, causing her serious physical injury. [Affidavit in Support by Marc Weiler, Exhibit E, ¶2]. Specifically, it is alleged that Ms. Kneiss interceded in an argument between two fellow patients - whose names are unknown - and was pushed by one of the patients, fell to the ground, and sustained injury. [id]. He alleges that employees failed to timely intervene and/or failed to properly supervise the patients under their care. The Claim is signed by the attorneys for Claimant. [id]. In a Verification appended to the proposed Claim, Claimant indicates that he is the "Appointed Guardian of the Property of Lorene Kneiss"

The claim also recites that a Notice of Claim was sent to Rockland County Psychiatric Center, Rockland County Department of Mental Health, and the New York State Office for Mental Health on or about September 2, 2004. [ibid. ¶13]. According to the Affirmation in Support by Claimant's counsel, and confirmed in the Affirmation in Opposition by the Assistant Attorney General, a Notice of Intention to file a claim was served upon the Office of the Attorney General on or about December 20, 2004, more than ninety (90) days after the date of accrual. [Affirmation in Support, ¶4, Exhibit D; Affirmation in Opposition, ¶8]. Because the Notice of Intention was not timely served, it did not operate to toll the statute of limitations and, therefore, any claim served and filed would be untimely. See Court of Claims Act §§10 and 11. No arguments have been advanced concerning the applicability of Court of Claims Act §10(5).

In order to determine an application for permission to serve and file a late claim, the Court must consider, "among other factors," the six factors set forth in §10(6) of the Court of Claims Act. The factors stated therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim. See e.g. Matter of Gavigan v State of New York, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any particular factor is not dispositive Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New York, 288 AD2d 172 (2d Dept 2001).

Additionally, the motion must be timely brought in order to allow that a late claim be filed ". . . 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 civil practice law and rules . . ." Court of Claims Act § 10(6). Here, the applicable statute of limitations is three (3) years, thus the motion is timely. Civil Practice Law and Rules §214.

A claim appears to be "meritorious" within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates that there is reasonable cause to believe that a valid cause of action exists. Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 (Ct Cl 1977). Claimant need not establish a prima facie case at this point, but rather the appearance of merit. Witko v State of New York, 212 AD2d 889, 891 (3d Dept 1995).

Claimant does not provide any adequate excuse for the failure to timely serve and file a claim, or to timely serve a Notice of Intention to file a claim. He states he was waiting for medical records from Rockland Psychiatric Center that he requested via FAX transmission on July 1, 2004 and again on August 9, 2004. [Affidavit in Support by Dr. Marc Weiler, ¶¶3 and 4, Exhibit A]. He indicates that he sought "Court permission" - without stating from what Court he sought permission - and that "The Court granted me permission to file suit provided it was not frivolous." [ibid. ¶3]. He states that "[a]fter numerous telephone calls, I received the medical records on or about December 20, 2004 and provided same to my attorneys . . . [who] informed me that they believed there was a meritorious cause of action against the State . . . " [ibid. ¶5]. Finally, he states that he "made diligent efforts to ascertain whether any claim against the State was meritorious . . . " [ibid. ¶ 6].

Counsel's Affirmation in Support confirms that in early September, 2004 a "notice of claim" was sent everywhere but where it was required to be sent: the Office of the Attorney General. [Affirmation in Support by Elizabeth W. Hobler, Counsel for Claimant, ¶4].

The absence of an excuse, however, is but one of the factors to be considered, and does not necessarily preclude relief. Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, supra.

Another factor that weighs against allowing Claimant to serve and file a late claim, as noted by the Assistant Attorney General, is the availability of an alternate remedy against the alleged assailant. [Affirmation in Opposition by Vincent M Cascio, Assistant Attorney General, ¶20].

The closely related factors of notice, opportunity to investigate and prejudice to the State, considered together, weigh toward granting Claimant's motion. Although service of a notice of claim upon the State agency that may be implicated in the Claim does not constitute adequate notice, given that the Defendant does not assert that it has been prejudiced, and that at least certain individual agents of the State may have been made aware of the potential for suit, the lack of notice is not consequential. To some degree, Claimant's attempts to obtain more information from the State medical providers before serving and filing a claim against the State of New York, provides additional notice. Indeed, exercising restraint in serving and filing a claim before obtaining sufficient information to determine if a claim would actually lie is somewhat rare. Moreover, the passage of time has not been so great that the State's ability to investigate is impeded to its prejudice. cf. Edens v State of New York, 259 AD2d 729 (2d Dept 1999) (Two years and two and one half months from date of accrual). Accordingly, these factors weigh in favor of granting the motion.

As noted, Claimant need not establish his claim prima facie, but rather must show the appearance of merit. If the allegations in the claim are accepted as true for the purposes of the motion, Claimant has marginally made the requisite showing of merit in order to permit late filing of his claim.

Although "[a] hospital has a duty to safeguard the welfare of its patients, even from harm inflicted by third persons, measured by the capacity of the patient to provide for his or her own safety . . . (citations omitted), it does not render a hospital an insurer of patient safety or require it to keep each patient under constant surveillance . . . (citation omitted). As with any liability in tort, the scope of a hospital's duty is circumscribed by those risks which are reasonably foreseeable . . . (citations omitted)." N.X. v Cabrini Medical Center, 97 NY2d 247, 252-253 (2002). Thus although the cases cited by Claimant, Shattuck v State of New York, 166 Misc 271 (Ct Cl 1938) and Weihs v State of New York, 267 AD 233 (3d Dept 1943)[2] are certainly pertinent in terms of how that duty to patients may be measured and circumscribed under the particular facts recited therein, they are not dispositive in defining how that duty would be articulated in the case at bar. Although at this point Claimant's wait for medical records has ostensibly ceased, and it might have been helpful to give more of a description of what happened, the statements presented in the proposed claim sufficiently apprise Defendant of ". . . the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed . . . " for late claim purposes. Court of Claims Act §11(b).

It is noted that the Reply Affirmation attaches what appear to be documents showing that Claimant was appointed guardian or co-guardian of the person and/or property of Ms. Kneiss at various points in time, but does not contain any explanation of the proceedings presumably held pursuant to Article 81 of the Mental Hygiene Law - at least to the extent of affirming Claimant's present authority to act. [See Reply Affirmation by Elizabeth W. Hobler, Counsel for Claimant, Exhibit A]. The most recent document is entitled "Supplemental Order Concerning Guardian Powers," is file stamped by the Westchester County Clerk's Office on September 23, 2003, and appears to marginally modify an Appointment Order previously entered by the Westchester County Supreme Court in April 2002 by, among other things, specifically indicating that the Guardian may "Defend or maintain any civil judicial proceedings involving the rights of Ms. Lorene A. Kneiss or her assets . . . "[3] [id.]. If these documents evidence a still current appointment, then it certainly begs the question as why permission to commence this proceeding from some court was necessary, since it appears that Claimant had the authority to do so all along.

On its face, the proposed claim does not state Claimant's authority, but this is an easily corrected problem.

Accordingly, and after considering and balancing all the factors contained in Court of Claims Act §10(6), Claimant's motion for permission to serve and file a late claim is hereby granted. Claimant is directed to serve his claim with the modification directed above upon the Attorney General, and to file it with the Chief Clerk of the Court of Claims within thirty (30) days from the date of filing of this decision and order in the Clerk's office, with such service and filing to be in accordance with the Court of Claims Act, with particular reference to §§ 10, 11 and 11-a, and the Uniform Rules for the Court of Claims.

April 11, 2005
White Plains, New York

Judge of the Court of Claims

[1] For ease of reference, the "proposed Claimant" is hereinafter referred to as "Claimant."
[2] cf. Root v State of New York, 180 Misc 205 (Ct Cl 1943)
[3] Two earlier documents entitled "Commission to Temporary Guardian of Person and/or Property", dated January, 2001, and "Commission to Guardian" dated April or May, 2002, indicate in the powers section that the Guardian may "Defend or maintain any civil judicial proceeding." [id].