This is a motion of Damon Massey, as Administrator of the Estate of Lynda
Massey (hereinafter "movant") for permission to file a late claim pursuant to
Court of Claims Act §10(6)
, relating to
alleged medical malpractice arising out of the death of Lynda Massey
The alleged acts of malpractice occurred during two hospitalizations of the
decedent. The first hospitalization was between June 14, 2003 and June 28,
2003, while the second was from July 10, 2003 until her death on August 5, 2003.
The acts consisted of the failure to treat an infectious disease for which
decedent was diagnosed during her first hospitalization.
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 to three factors: a delay in the
obtaining of the Letters of Administration; defendant's delay in getting movant
the medical records; and movant accepts some of the responsibility for the
delay. Movant relies most heavily on the delay of the defendant in sending
decedent's medical records. Movant indicates he was unable to investigate and
obtain an expert opinion until he was in possession of the records.
A delay in obtaining the medical records is a valid excuse for failing to file
a certificate of merit (CPLR 3012-a(d)). However, this delay need not keep
movant from serving a notice of intention prior to the full extent of the
injuries being known (Leung v State of New York, motion no. M-49070
[Silverman, J., Ct Cl]). Court of Claims Act §11(b) states that the items
of damage and the sum claimed may be excluded from a notice of intention. In
addition, movant could have served a notice of intention as the proposed
administrator (Matter of Johnson v State of New York, 49 AD2d 136;
Lewis v State of New York, 25 NY2d 881).
Movant's delay in timely serving and filing a claim or serving a notice of
intention as to the claims for conscious pain and suffering are attributable to
ignorance. The ignorance of the law of movant's attorney is not a reasonable
excuse (see Sevillia v State of New York, 91 AD2d 792).
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 decedent's medical records are maintained by the hospital, and, the
State has access to these records which would have provided them with notice of
the essential facts and an opportunity to investigate (Rechenberger v Nassau
County Medical Center, 112 AD2d 150). Therefore, there is no substantial
prejudice to the State.
Movant appears to have an alternate remedy, in that movant could sue the
individuals listed in the medical records.
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, he must include a physician's affidavit in support of his
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). In the
instant action, movant has included an affidavit of an expert which details the
allegations of deviations from accepted medical standards.
The State asserts that the proposed claim does not contain sufficient
particularization of its conduct as it relates to the allegations and thus,
gives no clear notice as to what duties, if any, were owed to movant, all in
violation of Section 11 of the Court of Claims Act (Heisler v State of New
York, 78 AD2d 767). The proposed claim states the time and place where the
claim arose and the nature of the action, and therefore, the Court finds it
complies with Section 11 of the Court of Claims Act.
In conclusion, the majority of factors favor movant. Therefore, movant's
application to file a late claim is granted. Movant is directed to serve and
file the claim pursuant to Court of Claims Act §§10, 11, and 11-a
within forty-five (45) days of the filing of this decision and order.