New York State Court of Claims

New York State Court of Claims

EHRLICH v. THE STATE OF NEW YORK, #2005-033-111, Claim No. None, Motion Nos. M-69412, CM-69467


Synopsis



Case Information

UID:
2005-033-111
Claimant(s):
LISA EHRLICH
Claimant short name:
EHRLICH
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-69412
Cross-motion number(s):
CM-69467
Judge:
James J. Lack
Claimant’s attorney:
Geller & Siegel, LLPBy: Sean E. Coonerty, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Katharine S. Brooks, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 23, 2005
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a motion of Lisa Ehrlich (hereinafter “movant”) for permission to file a late claim pursuant to Court of Claims Act §10(6)[1], relating to alleged negligence and medical malpractice arising out of the delivery and post-partum care of movant on the birth of her daughter on March 19, 2003 at the State University Hospital at Stony Brook (hereinafter “defendant”).

Movant made a previous motion to file a late claim, which this Court granted (M-67533, filed April 9, 2004). Movant asserts that pursuant to this Court’s decision, a claim was served on the Attorney General’s Office on or about April 28, 2004, and filed with the Clerk of the Court on May 3, 2004 (Claim No. 109291). Movant indicates that the filed claim does not contain an affidavit of service and counsel does not have a certified mail receipt. By August 2004, when movant had not received an answer from the defendant, movant served “another more detailed Claim . . . upon the Attorney General in Albany (by regular mail) on or about August 16, 2004" (Movant’s Affirmation ¶10). Movant also filed the claim with the Clerk of the Court and was assigned a second claim number (Claim No. 109738).

Defendant cross-moves this Court for an order dismissing the claims[2]. As to the first claim, defendant asserts that it was never served with a copy of the claim. Movant questions the genuineness of this assertion. In his reply papers, movant’s counsel argues that the claim was mailed to the same address that the order (M-67533) was mailed with the notice of entry by movant. Movant asserts that defendant got the order with the notice of entry based upon a letter from defendant to the Court dated May 7, 2004. The letter states defendant was in receipt of the Court’s decision granting movant permission to file a late claim without opposition from defendant. However, defendant states it was never served with the original motion, but given the circumstances of the claim, defendant would not make a motion to vacate. Defendant does not state from where it obtained the decision. The Court notes that the Clerk’s office mails decisions to both parties.

The Court will address defendant’s cross-motion to dismiss the claims first. A cursory glance at the address used by movant in Exhibit B reveals that it is incomplete. As to Claim No. 109291, movant has no affidavit of service or certified mail return receipt. Movant does not assert that the claim was served properly. The Court concludes that service of this claim was improper and grants defendant’s motion to dismiss Claim No. 109291.

Defendant’s argument that Claim No. 109738 is a nullity is correct. A proposed claim must accompany a motion for a late claim (Court of Claims Act §10). Movant had no permission pursuant to Court of Claims Act §10(6) to file a new claim. Further, movant admits that the service she attempted to make was defective, in that service was attempted by regular mail. It is well settled that service of the claim is jurisdictional in nature and movant’s failure to appropriately serve the claim is fatal to the claim. The Court grants defendant’s motion to dismiss Claim No. 109738.

The Court turns its attention to movant’s application for leave to once again file a late claim pursuant to Court of Claims Act §10(6).

The alleged acts of malpractice occurred during a cesarean section when a pad, 20 cm x 20 cm x .3 cm, was left inside movant. The pad was discovered on March 24, 2003, after several diagnostic procedures and the placement of an NG tube. An exploratory procedure was undertaken and the pad was removed.

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).

In the previous decision, the Court fully discussed each of the criteria. At the time of the original motion, the Court found movant to have a reasonable excuse. The delay at this point is attributable to law office failure. This factor no longer weighs in movant’s favor.

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 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 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’s medical records which are attached to her papers indicate that the pad was left in movant.

In conclusion, the majority of factors favor movant. Therefore, movant’s application to file a late claim is granted. Movant 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 file stamp, of this decision and order in accordance with §§10, 11 and 11-a of the Court of Claims Act. Counsel is strongly urged to review these sections and to be mindful of the service and filing requirements.[3]


March 23, 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: Notice of Motion dated November 17, 2004 and filed November 22, 2004; Affirmation of Sean E. Coonerty, Esq. with annexed Exhibits A-G dated November 17, 2004 and filed November 22, 2004.
[2].The following papers have been read and considered on defendant’s motion: Notice of Cross-Motion dated December 14, 2004 and filed December 15, 2004; Affirmation in Support of Cross-Motion and in Opposition to Claimant’s Motion of Katharine S. Brooks, Esq. dated December 14, 2004 and filed December 15, 2004; Affirmation in Opposition and Reply of Sean E. Coonerty, Esq. dated December 17, 2004 and filed December 20, 2004.
[3].The statute of limitations is quickly approaching and counsel’s failure to correctly serve and file the claim will severely limit the remedies left to movant.