This is a motion of Matthew Borino, an infant, by his mother and natural
guardian Renee Lediuzet, and by Renee Lediuzet, individually (hereinafter
“movants”) for permission to file a late claim pursuant to Court of
Claims Act §10(6)
, relating to alleged
negligence and medical malpractice arising out of the delivery and postpartum
care of movant Matthew Borino on March 15, 2002 at the State University Hospital
at Stony Brook (hereinafter “defendant”).
The Court denies movant’s motion as unnecessary for the infant Matthew
Borino. Court of Claims Act §10(5) states that an individual who is under
a legal disability shall have two years after the disability is removed to
timely present the claim. Movant Matthew Borino was born on March 15, 2002,
and, thus, is clearly under the legal disability of infancy. Any claim filed on
behalf of movant Matthew Borino is timely.
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
Movant Renee Lediuzet attributes her delay in filing to not connecting her
son’s neurological deficits to the alleged malpractice of defendant. This
excuse is nothing more than ignorance and is not an acceptable excuse.
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 essential facts and an opportunity to investigate (Rechenberger v Nassau
County Medical Center, 112 AD2d 150). Movant Matthew Borino’s claim
is still timely and his claim arises out of the same hospitalization and
procedures as movant Renee Lediuzet. Therefore, there is no substantial
prejudice to the State.
Movant does appear to have an alternative remedy, in that the doctors who
performed the procedure could be sued personally.
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
The Court is satisfied that the claim is meritorious. Movant has supplied
affidavits of doctors which opine that defendant has departed from good and
accepted medical practices and those departures caused Matthew’s injuries.
In conclusion, the majority of factors favor movant. Therefore, movant’s
application to file a late claim is granted. Movants shall serve and file the
proposed claim within forty-five (45) days of the filing date, as indicated by
the Clerk of the Court’s filed stamp, of this decision and order in
accordance with §§10, 11 and 11-a of the Court of Claims Act. In
filing the claim, the Court indicates that the only appropriately named
defendant in this matter is the “State of New York”. The hospital
is an agency of the State of New York, which is the real party in interest.