New York State Court of Claims

New York State Court of Claims

MASSEY v. THE STATE OF NEW YORK, #2005-033-104, Claim No. None, Motion No. M-68731


Synopsis



Case Information

UID:
2005-033-104
Claimant(s):
DAMON MASSEY, as Administrator of the Estate of LYNDA MASSEY, Deceased
Claimant short name:
MASSEY
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-68731
Cross-motion number(s):

Judge:
James J. Lack
Claimant's attorney:
Silberstein, Awad & Miklos, P.C.By: Paul N. Nadler, 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 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)[1], relating to alleged medical malpractice arising out of the death of Lynda Massey (hereinafter "decedent").

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 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 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.


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 June 15, 2004 and filed July 7, 2004; Attorney's Affirmation of Paul N. Nadler, Esq. with annexed Exhibits A-P dated June 15, 2004 and filed July 7, 2004; Affidavit of Damon Massey sworn to June 3, 2004 and filed July 7, 2004; Affirmation in Opposition of Ellen Matowik, Esq. with annexed Exhibits A-B dated October 18, 2004 and filed October 20, 2004; Attorney's Affirmation in Reply of Paul N. Nadler, Esq. with annexed Exhibits A-D dated November 23, 2004 and filed November 26, 2004; Attorney's Affirmation in Reply of Paul N. Nadler, Esq. with annexed Exhibits A-D dated November 24, 2004 and filed November 29, 2004.