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
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)
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
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 . . . "
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.