New York State Court of Claims

New York State Court of Claims

VALENTINE v. THE STATE OF NEW YORK, #2005-030-901, Claim No. 108903, Motion Nos. M-69248, CM-69407


Dismissal motion granted; motion for permission to late file claim granted.

Case Information

MARTHA VALENTINE The court has, sua sponte, deleted the improper and unnecessary references to SUNY Health Science Center at Brooklyn a/k/a SUNY Downstate Medical Center from the caption.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The court has, sua sponte, deleted the improper and unnecessary references to SUNY Health Science Center at Brooklyn a/k/a SUNY Downstate Medical Center from the caption.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
Menon & Posnerby Marshall Posner, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby Joseph Paterno, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 19, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The court read and considered the following papers on this motion and cross-motion: Notice of Motion, Affirmation and Exhibits; Notice of Cross-Motion, Affirmation and Exhibits. According to the papers before the court, claimant, a 54 year-old woman, was a patient at Downstate Medical Center on July 8, 2003, receiving radiation therapy for breast cancer, when she suffered a fractured femur, allegedly the result of carelessness and negligence on the part of defendant's employees in transferring her from a stretcher to a treatment table. A notice of intention was served on the defendant on October 7, 2003 and the instant claim was filed on February 13, 2004. In its answer, defendant alleged that the court lacked jurisdiction over the claim because neither the claim nor the notice of intention was served within 90 days of accrual, as required by Court of Claims Act §10(3). A preliminary conference was held and the court pointed out that the defense was meritorious, albeit only by one day (October 7, 2003 being 91 days after July 8, 2003). Claimant's counsel was advised that a motion for permission to late file a claim was necessary.

Initially, the cross-motion to dismiss for lack of jurisdiction arising from late service of the notice of intention must be, and hereby is, granted.

Claimant now seeks permission to late file a notice of intention to file a claim, relief for which there is no authority in the Court of Claims Act. A notice of intention is an optional document, available to a potential claimant who wants to extend the statutory period but is not yet ready to file a claim. Its sole purpose, other than extending the time in which to file a claim, is to provide notice to defendant within the statutory period. Once 90 days has passed without action by the potential claimant, as here, the sole remedy is to request permission to late file a claim pursuant to Court of Claims Act §10(6). The court will deem the instant motion as requesting such relief, as did the defendant, and will consider the filed, untimely, claim as the proposed claim in connection with that application.

With respect to the application to late file, the court is required to consider all relevant factors – including whether claimant's delay was excusable, whether defendant had timely notice of the facts constituting the claim and the timely opportunity to investigate, whether defendant would suffer substantial prejudice if late filing were allowed, whether there is apparent merit to the proposed claim and whether claimant has an alternate remedy (Court of Claims Act §10[6]).

Claimant's counsel argues that the delay was excusable and de minimus. While the latter assertion is clearly true, counsel does not explain how the length of the delay relates to the reason for it. He states only that his office was under the "mistaken belief that October 7th was, in fact, the last day to file."[1] Since the source of that mistaken belief is not explained, and since the mathematics involved are not difficult, the court finds that claimant's delay was neither reasonable nor excusable.[2] Such, however, is but one factor to consider.

Defendant argues that it did not have actual notice of the facts constituting the claim, despite the repeated references to the incident in the hospital records[3]– "Pt. suffered pathological fracture of L femur during the radiation simulation procedure. Orthopedics saw pt., ordered films and will place her [in] traction. (Exhibit "H" to notice of motion). As these records demonstrate, the personnel at Downstate were aware that they broke claimant's femur while transferring her from the stretcher the moment it happened and they immediately began to treat it. Defendant's argument that "mere" possession of medical records does not equate to notice of "medical malpractice," supported by citations to decisions that are not at all analogous to this case[4] is not persuasive.

Moreover, the statement made by the Assistant Attorney General that, under the circumstances set forth in the papers before the court, defendant "did not have the opportunity to investigate" is belied by the medical record. There is no prejudice here. Defendant's employees knew what happened from the very moment of accrual. The operative facts were an obvious lawsuit just waiting to be commenced. Then, notice was received from counsel 91 days after the incident, rather than 90 days after. Just how this equates to "prejudice," much less the "substantial prejudice" referred to in the statute, is not explained.

With respect to the apparent merit of the claim, defendant's argument that the motion must be denied in the absence of an affidavit from a physician has as little merit as its contentions with respect to notice and prejudice. Claimant's burden on a motion for permission to late file a claim is to show that the proposed claim is not patently groundless, frivolous or legally defective (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1), a burden that is more than met by claimant's submission, despite the absence of an affidavit from a physician advising the court that when hospital personnel break a patient's leg while transferring her from a stretcher to a treatment table, negligence is likely to have been involved. Defendant does not even address claimant's factual allegations. While it is undoubtedly true that in most negligence claims arising in the medical context an affidavit from a physician is necessary to find apparent merit, this is not one of those cases.

Finally, the court is somewhat perplexed by defense counsel's suggestion that claimant commence suit in supreme court against "those private attending physicians who rendered treatment to her at the relevant time in question." It is unlikely that Downstate utilizes "private attending physicians" to transfer patients from stretchers to treatment tables. Accordingly, Claimant has no other remedy.

The court finds that claimant had no reasonable excuse for failing to interpose her claim in a timely manner and that the rest of the statutory factors weigh in favor of allowing late filing.

For the foregoing reasons, the motion is granted, as is the cross-motion to dismiss Claim No. 108903. Claimant may serve (by an authorized method) and file (along with a new filing fee) her claim (not a notice of intention) within 30 days of the filing date hereof, in accordance with the relevant provisions of the Court of Claims Act and the Uniform Rules for the Court of Claims. Claimant's counsel is directed to advise the court, by telephone, the day the answer is served, so that an expeditious conference may be arranged, in view of the unfortunate delays that have already plagued this matter.

January 19, 2005
White Plains, New York

Judge of the Court of Claims

[1]Counsel presumably means "serve," not "file," since a notice of intention is served on the defendant, not filed with the court.
[2]The court also does not understand counsel receiving, in March 2004, an answer alleging that the court lacks jurisdiction because the notice of intention was not timely served, and ignoring it until the problem was pointed out by the court six months later. This error will end up costing the claimant approximately one year in wasted time and unnecessary motion practice.

[3]All of the following quotations are from the progress notes in claimant's chart for the date in question:

– "Planned for simulation treatment to start today. In transferring pt. from stretcher to simulator care mattress, pt. c/o severe pain."

– "Patient sustained proximal femoral fx. while being shifted for radiation."

[4]Claimant does not seek to infer notice to defendant from "mere" possession of medical records. Rather, the medical records explicitly demonstrate actual notice on the part of defendant's employees of all of the relevant facts; facts that it is hardly surprising would be the basis for a negligence action.