New York State Court of Claims

New York State Court of Claims

BORINO v. THE STATE OF NEW YORK, #2005-033-109, Claim No. None, Motion No. M-69089


Synopsis



Case Information

UID:
2005-033-109
Claimant(s):
MATTHEW BORINO, an Infant under the age of fourteen (14) years by his Mother and Natural Guardian, RENEE LEDIUZET, and RENEE LEDIUZET, Individually
Claimant short name:
BORINO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK1 1.The Court sua sponte amends the caption to read The State of New York as the only Defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-69089
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Law Offices of Kenneth A. WilhelmBy: George Catlett, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Ellen Matowik, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 25, 2005
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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)[2], 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 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 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 request.

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.


March 25, 2005
Hauppauge, New York

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




[2].The following papers have been read and considered on movants’ motion: Notice of Motion dated September 7, 2004 and filed September 14, 2004; Attorney Affirmation of George Catlett, Esq. with annexed Exhibits A-D dated September 7, 2004 and filed September 14, 2004; Affirmation in Opposition of Ellen Matowik, Esq. with annexed Exhibit A dated November 3, 2004 and filed November 5, 2004; Reply Affirmation of George Catlett, Esq. with annexed Exhibit A dated December 6, 2004 and filed December 14, 2004.