New York State Court of Claims

New York State Court of Claims

CHARLES v. THE STATE OF NEW YORK, #2005-030-914, Claim No. None, Motion No. M-69099


Case Information

IMMACULA CHARLES, Administratrix of the Estate of MARIE LESTIN, and IMMACULA CHARLES, Individually
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:
Ornstein & Ornstein, Sheldon Green, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby Ross N. Herman, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 3, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The court read and considered the following papers on claimant's motion for permission to file a late claim: Notice of Motion, Affirmation and Exhibits; Affirmation in Opposition, Claimant's Reply Affirmation and Exhibits; Defendant's Reply Affirmation; Claimant's Sur-Reply Affirmation.

In an interim decision and order filed December 15, 2004, the court adjourned this motion and directed claimant to serve and file a proposed claim as well as papers addressing the apparent merit of the proposed claim and the availability of an alternate remedy. Claimant has done so and defendant has responded.

The circumstances leading up to this motion are adequately discussed in the court's interim decision and order and there is no need to repeat that discussion here. The court found that there was no reasonable excuse for claimant's failure to have timely served and filed a claim and that the notice, opportunity to investigate and lack of substantial prejudice factors weighed in favor of the claimant.

Based on the newly-submitted papers, including the physician's affidavit, the court finds that it appears that claimant possesses a viable medical malpractice claim. On the alternate remedy factor, claimant advises that she has commenced an action in Supreme Court, Kings County, against the three physicians who are responsible for the alleged malpractice, yet counsel still argues that claimant has no alternate remedy and that, if the instant motion is not granted, claimant will be left without a remedy. While counsel's argument seems incomprehensible, it appears that it is apparently based on a misconception of the applicable law.

Counsel states that the attorney for one of the physician-defendants in the supreme court action has advised him that his client was employed by Downstate Medical Center and that, as such, the Court of Claims is the "appropriate forum" for the claim. That attorney as well as claimant's counsel herein are both seemingly unaware of the law in this area. Morell v Balasubramanian (70 NY2d 297) involved a medical malpractice action brought in supreme court against physicians who were employed by the state at the time of the malpractice. Although the defendants argued that, under such circumstances, the state was the real party in interest and the action must therefore be brought in the Court of Claims, the Court of Appeals rejected that argument, holding that where
"the suit against the State agent or officer is in tort for damages arising from the breach of a duty owed individually by such agent or officer directly to the injured party, the State is not the real party in interest--even though it could be held secondarily liable for the tortious acts under respondeat superior" * * * plaintiff's suit against defendants individually for an alleged breach of the duty of care owed by them directly to decedent was not one against State officers as representatives of the State in their official capacity which had to be brought in the Court of Claims. That plaintiff could have chosen to proceed in the Court of Claims directly against the State based on its vicarious responsibility for defendants' actions does not make the State the real party in interest in the suit against defendants in Supreme Court" (id., 301, 302).
The court held that the plaintiffs could proceed in supreme court against the physicians who were responsible for the alleged malpractice. The facts of that case are identical, in all relevant respects, with the facts of this case. The sole allegations of negligence on the part of the State of New York herein are based on the alleged malpractice of the three physicians who are defendants in the supreme court action. Thus, the court must find that claimant has an adequate alternate remedy in the form of the already pending action.

Three of the statutory factors (Court of Claims Act §10[6]) weigh in favor of the claimant and three weigh in favor of the defendant. The deciding factor is that granting this motion would result in two identical actions pending in two different courts. Claimant has identified no reason why this obvious waste of judicial resources is necessary and the court perceives none. Thus, the motion is denied.

May 3, 2005
White Plains, New York

Judge of the Court of Claims