This is a motion of Elaina Lucia (hereinafter "movant") for permission to file
a late claim pursuant to Court of Claims Act
, 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.
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
(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
In conclusion, the majority of factors, including merit do not favor movant.
Therefore, movant's application to file a late claim is denied.