New York State Court of Claims

New York State Court of Claims

LUCIA v. THE STATE OF NEW YORK, #2005-033-100, Claim No. None, Motion No. M-69195


Synopsis



Case Information

UID:
2005-033-100
Claimant(s):
ELAINA LUCIA
Claimant short name:
LUCIA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-69195
Cross-motion number(s):

Judge:
James J. Lack
Claimant's attorney:
Greshin, Ziegler & Amicizia, LLPBy: Matthew H. Bligh, Esq.
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Ellen Matowik, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 18, 2005
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a motion of Elaina Lucia (hereinafter "movant") for permission to file a late claim pursuant to Court of Claims Act §10(6)[1], relating to alleged medical malpractice occurring between October 12, 1995 and May 27, 1997, at University Hospital and Medical Center at Stony Brook (hereinafter "Stony Brook).

During the above-described time periods, movant was a patient at Stony Brook and underwent operations to repair a duct between her sinus cavity and her brain. Movant has attached medical records for the Court's consideration. Movant alleges that as a result of medical malpractice she sustained the following injuries: severed nerves in her palate limiting her ability to speak and spinal fusion surgery as the result of a non-diagnosis of an abscess in her spine which destroyed cervical vertebra.[2]

Movant was born on April 2, 1984 and was an infant during the time of the alleged malpractice. Movant attained the age of 18 on April 2, 2002. Court of Claims Act §10(5) states that if a claimant is under a legal disability, then the claimant may present the claim within 2 years of the legal disability being removed. Movant failed to present the claim before April 2, 2004 and thus, moves for a late claim.

In order to determine whether to grant a timely made application for permission to file a late claim, the Court must consider, among any other relevant factors, the six statutory factors set forth in Court of Claims Act §10(6):

(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 failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State;

(5) whether movant has another available remedy; and

(6) whether the claim appears to be meritorious.


The Court in the exercise of its discretion balances these factors, and, as a general rule, the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979).

Movant attributes the delay in filing a claim was because she had to find doctors to repair her palate and to improve her health and "put her life back together" (movant's counsel's Affirmation ¶9). Movant's papers are devoid of any details to explain to the Court how movant was incapacitated with no chance of being able to file the within claim. Movant merely makes conclusory statements to support her "excuse". Movant has not included a physician's affidavit or medical records sufficient to support her inability to timely file a claim (Goldstein v State of New York, 75 AD2d 613).

Further, it appears that movant has an alternate remedy in Supreme Court against the attending physicians.

The second, third and fourth factors ( notice of the essential facts constituting the claim; an opportunity to investigate the circumstances underlying the claim; and whether the delay resulted in substantial prejudice to the State) are related. The Court will consider these factors together.

All of movant's medical records are maintained by the hospital, and, the State has access to these records which would have provided it with notice of the underlying facts of the claim and an opportunity to investigate (Rechenberger v Nassau County Medical Center, 112 AD2d 150). In her Affidavit, movant provides particularity as to the circumstances of her treatment (see Andersen v Nassau County Medical Center, 135 AD2d 530). Therefore, there is no substantial prejudice to the State.

While the presence or absence of any one of the six factors is not dispositive, (see Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979), the most critical factor always is the apparent merit of the proposed claim. The movant need only establish that the proposed claim is not patently groundless, frivolous or legally defective and 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). If a movant cannot meet this low threshold and the claim is patently without merit it would be meaningless and futile for the Court to grant the application even if all the other factors in Court of Claims Act §10(6) weighed in favor of the movant's request.

Since movant is seeking permission to file a late claim in a medical malpractice action, she must include a physician's affidavit in support of her application. This affidavit is necessary to establish the allegations of deviations from accepted standards (see Jolley v State of New York, 106 Misc 2d 550; Favicchio v State of New York, 144 Misc 2d 212). A physician's affidavit has not been included in the moving papers which is a well established requirement (see Colson v State of New York,115 Misc 2d 402; Schreck v State of New York, 81 AD2d 882; Matter of Edwards v State of New York, 119 Misc 2d 355,357). Contrary to movant's position, the fact that unfavorable events occurred during the operations does not mean that malpractice occurred or that the treating physicians deviated from good accepted medical standards.

In conclusion, the majority of factors, including merit do not favor movant. Therefore, movant's application to file a late claim is denied.


March 18, 2005
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1]The following papers have been read and considered on movant's motion to file a late claim: Notice of Motion dated September 30, 2004 and filed October 1, 2004; Affirmation in Support of Matthew H. Bligh, Esq. with annexed Exhibits A-D dated October 1, 2004 and filed October 1, 2004; Affidavit in Support of Elaina Lucia sworn to October 1, 2004 and filed October 1, 2004; Affirmation in Opposition of Ellen Matowik, Esq. dated November 16, 2004 and filed November 18, 2004.
[2]Movant alleges that the fusion surgery was negligently done and, therefore, necessitated two further surgeries.